HKSAR v. WONG KAI KWONG

DCCC 854/2018

[2019] HKDC 809

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 854 OF 2018

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Reasons for Sentence

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1.  The defendant has pleaded guilty to 10 charges. The first six charges are fraud, 7th charge is failing to surrender to custody, and the 8th, 9th and 10th charges are obtaining services by deception, and the offences range through 2012 to 2013, and defendant has accepted the prosecution facts and has been convicted.

2.  The charges mainly relate to the passing of bad cheques by the defendant.  The facts that have been agreed show a total of some 15 cheques that were passed by the defendant, with a total loss to the victims in the nine charges - the nine charges that relate to financial matters - of some $191,584, and the prosecution rely on what they describe as “incidents”, which are facts around which the issue of the cheques cluster, by which the defendant obtained various goods and services throughout 2012 and 2013.

3.  The first incident relates to the negotiation to purchase an elderly home called the “Fuk Wing Home of the Aged”. The defendant in fact had issued some three cheques in an attempt to acquire some part of the ownership of Fuk Wing.  There is no charges in relation to those cheques. However, the defendant did issue some three further cheques, which are called “cheques 4, 5 and 6” in the facts, and then “6, 7 and 8”, which were to meet various of the expenses of Fuk Wing’s payments to suppliers, and total losses from these cheques were in the region of $19,000-odd.

4.  The second incident relates to the birth of the defendant’s child at the Hong Kong Baptist Hospital, and the 4th, 5th and 6th charges relate to payments made by way of cheque for various services provided by the hospital.  These were cheques 9 to 11, and the total amount of payment that was evaded in that series of offences was $129,197.

5.  Charge 7 relates to the defendant’s failure to attend court.  The defendant at one point was bailed to turn up to court on 18 June 2013.  He failed to turn up and was finally re-arrested some almost five years later on 25 April 2018.

6.  The remaining three charges relate to the provision of services in relation to accommodation. 

7.  The 8th charge relates to a premises at somewhere called “Gateway”.  Defendant issued cheques totalling up to $192,000.  There was a total loss of some $7,000.

8.  Charge 9 relates to a premises in Kornhill, cheques involved of up to $140,000 but the loss was some $4,000.

9.  The final 10th charge relates to Metropark. Again, cheques were issued in the sum of, I think it is 200,000; 152,000; and an outstanding fee of almost 20,000 is in fact lost there, suffered there.

10.  Of course, there are many incidents but the court has to look at the overall total picture and, as I have said earlier, a total of 15 cheques issued, total losses of just over $191,000.

11.  As far as the defendant’s antecedents, he is now aged 45.  He has been in custody since he was arrested in 2018.  He has worked in business, in good health, and he has a total of six children.  He does have criminal convictions for similar offences, offences of forgery in 1995 for which he was sentenced to community service, in 2008 further offences of obtaining property, evasion of liability by deception, and theft, for which there were sentences of imprisonment imposed, so similar types of offences.

12.  Because one of the defendant’s children has certain difficulties, I have obtained a report on the defendant.  It shows the defendant is married with a number of children, worked in a wholesale business, seemed to have had difficulty with cash flow in that business.  It is said the defendant is being evasive in disclosing his family background, details of this offence, and formulating a concrete social rehabilitation plan.  The defendant wants to carry on with his wholesale business and care for his children.  He asks for leniency, as does his family, and counsel through their mitigation.

13.  Although the defendant said that at the time he had some expectation of payment through an inheritance, he does accept, through his pleas of guilty and his mitigation, his responsibility for the cheques that he has issued.

14.  What the court has to look at here is there are a number of fraud charges and obtaining of services by deception charges spread from August 2012 to August 2013.  The offences are spread over quite a long time and involve quite a number of different victims.  This, of course, is an aggravating feature.

15.  Another aggravating feature is the defendant has similar convictions for offences of dishonesty.

16.  Another aggravating feature is the offences, I believe it is from Charge 4 onwards, would have been committed whilst the defendant was on police bail and then court bail.

17.  And the defendant has asked me to again approach this with the principle of totality foremost in mind, looking at the total actual losses and then adding in the aggravating factors.

18.  Now, taking all these factors into account, I am going to approach sentencing as follows.  I will indicate the starting point on each charge and then the discount of one-third for the defendant’s plea of guilty, and then I will indicate how the sentences should be served in relation to one another to achieve what I believe to be the correct overall total.

19.  Now, in relation to the first three charges - that is, the elderly home incidents - the losses are not great in these charges.  I am going to order the starting point, 9 months’ imprisonment on each of those charges, and after deduction of plea of guilty the sentence is 6 months’ imprisonment on Charges 1 to 3, and these starting points for sentence take into account the aggravating features I have already indicated.

20.  In relation to the Charges 4 to 6, which relate to the next incident, on the 4th charge, I will take a starting point of 12 months’ imprisonment, reduce that to 8 months’ imprisonment for the plea of guilty; on the 5th charge, starting point of 21 months’ imprisonment, reduce that to 14 months’ imprisonment for plea of guilty; on the 6th charge, starting point of 12 months’ imprisonment, reduce that to 8 months’ imprisonment for the plea of guilty.

21.  On the 7th charge, the absconding charge, I will take a starting point of 9 months’ imprisonment, reduce that to 6 months’ imprisonment for the defendant’s plea of guilty.

22.  Now, the 8th, 9th and 10th charges, which refer to the obtaining of various services by deception fraud, providing him with accommodation, I will take a starting point of 12 months’ imprisonment on each of those, reduce that to 8 months’ imprisonment for the defendant’s plea of guilty.

23.  Now, in relation to this whole matter, I consider that a proper overall starting point for sentence should be in the region of 45 months’ imprisonment, which, after deduction of plea of guilty, would give a final sentence of 30 months’ imprisonment.

24.  I shall achieve that by making the following order in relation to totality:

(1) Charges 1 to 3 will be served concurrently to each other;

(2) Charges 4 to 6 will be served concurrently to each other, but consecutively to Charges 1 to 3.

(3) as far as Charge 7 is concerned, 2 months will be served consecutively to the existing charges (that is, 1 to 6) and the balance concurrently; and

(4) Charges 8 to 10 will be served concurrently to each other but consecutively to 1 to 7.

This gives a total of 30 months’ imprisonment overall.

25.  That will be the order of the court.