HKSAR v. WONG PANG, ANDY

DCCC 899A/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 899A OF 2008

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a total of 30 charges. There are 28 charges of theft, one charge of using copies of false instruments and one charge of failing to surrender to custody without reasonable excuse.

2.  Defendant has agreed the facts of the case and I have convicted him of all those charges.

3.  A brief summary of those facts is that the 28 charges of theft relate to choses in action owed to Henderson Real Estate by its banker, Hang Seng Bank, and relate to cheques issued by Henderson for payment of commission to estate agent.  At the time of the offences, the defendant was a leasing officer of Henderson Land Development.  He was responsible for managing various residential and commercial buildings of Henderson and also for recommending whether premises under his management should be let to a particular person or company. 

4.  The case is that the defendant caused commission to be raised and paid on the basis of supposed leasing transactions.  The supposed leasing transactions conducted under his auspices between Henderson and supposed tenants introduced by two estate agencies.  They are Ka Fung and Cheerful Property.  These leasing transactions were wholly fictitious. Cheques for commission were issued by Henderson and paid to the accounts of Ka Fung and Cheerful, but there were no leases.  In order to pursue and enable these thefts, various forged documents were submitted by the defendant to Henderson to ensure payment of the money.

5.  The offences were discovered on 22 December 2007.  At that time, the accounts department of Henderson discovered that there were discrepancies in relation to four invoices submitted by Cheerful Property.  This led to the defendant’s arrest.  He admitted having prepared and submitted the forged documents to deceive Henderson into paying money to Cheerful.  Those forged documents are the subject of Charge 29.

6.  The defendant also was interviewed at that time and made various admissions.  Following the discovery of the forged documents in relation to those applications, all the deals that had been handled by the defendant were reviewed, and it was found that between March 2006 and November 2007, there had been 42 instances where the defendant claimed commission for Cheerful Property and Ka Fung, and this had led to the issuing of a total of 30 cheques to Cheerful and Ka Fung in relation to the 42 invoices for commission.  The cheques issued by Henderson and deposited with Ka Fung and Cheerful’s account represent the 28 charges of theft.  That is Charges 1 to 28, and it is agreed that they show that between 11 April 2006 and 21 December 2007, the defendant stole a total sum of $1,139,614.50 from Henderson.

7.  On 31 October 2008, the defendant was granted court bail by the District Court until 22 January 2008.  On 22 January 2008, the defendant failed to attend court as appointed. That is the 30th charge.

8.  As far as the defendant’s antecedents are concerned, at the time of these offences, he had a clear record.  His criminal record shows that he is currently serving a sentence of 8 months’ imprisonment for deception and fraud.  These were imposed on 27 March 2015, and the defendant has been serving that sentence since that date.

9.  I am informed that these charges relate to the same criminality, namely, the theft from Henderson of choses in action.  For some reason, they were detached from the other charges.  But in the normal course of events, they should have been sentenced together with these charges.

10.  Mitigation has been advanced on behalf of the defendant, and there is also a background report which is helpful to the defendant.  In summary, the defendant was originally brought up in a farming family in the mainland and did not come to Hong Kong until 1984.  He joined Henderson Real Estate when he was 21 years old in 1992.  He worked for them for 15 years.  Originally, he was a clerk and then he moved to the leasing department.  He was a leasing officer from 2004 to 2007.  He was married and his wife gave birth to a son in 2001.

11.  The defendant committed the offences he admits out of monetary greed.  He says his share was around $400,000.  He was aware after arrest that he would be sentenced to a period of imprisonment.  So he rang away and the information he has given to the background officer is he hid in Cheung Chau and Lantau Island.  He eventually wished to rebuild his life and his family life and to support his son, and he surrendered himself to the police in March of 2015 and has been in custody since then.  He asks for leniency.

12.  The defendant’s numerous theft offences - those are the 28 theft offences - amount in total to over a million dollars.  He was clearly in a position to trust.  This is a theft from his employer.  In respect of thefts of that nature, there are guideline sentences to be followed. 

13.  The 29th charge involving the false documentation appears to be part and parcel of these other offences.  The overall total for that $1 million would put this case in the guideline sentence of a starting point of 3 to 5 years’ imprisonment.  It would clearly be at the lowest end of that guideline.

14.  There are a large number of offences involving comparatively small sums of money.  It would be necessary to impose the correct sentence on each charge, then adjust the sentences to run concurrently and consecutively to achieve the correct overall totality for the criminality in relation to Charges 1 to 29.

15.  As far as the 30th charge is concerned, there are cases that place a serious breach of failing to attend court, failing to surrender to custody with a starting point of 9 months’ imprisonment.  This is a serious form of the offending as the defendant was on the run for a number of years.  But I must take into account the defendant in fact surrendered himself in this case.  So on the 30th charge, I would take an overall starting point of 6 months’ imprisonment for this offence.

16.  As far as the first 29 charges are concerned, I consider the overall starting point should be 3 years’ imprisonment which would lead for those offences after deduction of one-third discount for plea of guilty a sentence of 2 years’ imprisonment or 24 months’ imprisonment. 

17.  That must be achieved by imposing the correct sentence on each charge.  So I will do that as follows.  On each sentence I pronounce, I will already have deducted one-third for the defendant’s plea of guilty. 

18.  The sentences will be as follows then: Charge 1, 4 months; Charge 2, 4 months; Charge 3, 6 months; Charge 4, 4 months; Charge 5, 4 months; Charge 6, 2 months; Charge 7, 2 months; Charge 8, 4 months; Charge 9, 6 months; Charge 10, 6 months; Charge 11, 6 months; Charge 12, 2 months; Charge 13, 2 months; Charge 14, 2 months; Charge 15, 6 months; Charge 16, 4 months; Charge 17 and 18, each 2 months; Charge 19, 8 months; Charge 20 and 21, 6 months each; Charge 22, 4 months; Charge 23, 12 months; Charge 24, 4 months; Charge 25, 6 months; Charge 26 and 27, 4 months each; Charge 28, 2 months; Charge 29, 12 months.    

19.  I will achieve the overall totality of 24 months as follows.  I will order that Charges 1 and 9 be served concurrently to each other, 1 through to 9 be served concurrently to each other; Charges 10 through to 16, concurrently to each other but consecutively to 1 to 9; Charges 17 to 29 to be served concurrently to each other but consecutively to 1 to 16.  That should amount to 24 months’ imprisonment.

20.  On Charge 30, I take a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for the plea of guilty.  That sentence could be served consecutively to the other sentences. However, I am aware that the defendant has already served 2 months’ imprisonment in respect of the offences for which he was convicted in Eastern Magistracy.  So he should receive credit for that. 

21.  So I will order on Charge 30 that 2 months of that sentence be served consecutively to 1 to 29 and the balance concurrently.  That gives an overall total sentence for all 30 charges of 26 months’ imprisonment.

22.  It also appears to be that subject to any cause being shown, I should also estreat the defendant’s bail money.  It seems to me he absconded.  It seems to be difficult to advance an argument I should not estreat it.

23.  Yes, just one additional matter.  The sentences are served concurrently to any existing sentence.  I am doing that for the avoidance of doubt although I would say, technically.  You only need to say it if you are making it a consecutive sentence but, otherwise, sentences automatically run concurrently.  All right.  So they are concurrent to the existing sentence from at Eastern Magistracy.