HKSAR v. LUK YIU KWONG, JOHN

DCCC577/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 577 OF 2008

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Reasons for Sentence

1.  Defendant, you pleaded guilty to two offences of furnishing false information, contrary to section 19(1)(b) of the Theft Ordinance, Cap. 210, and to two offences of fraud, contrary to section 16A of the same Ordinance.  Charges 2, 5 and 6 were ordered to be left on file and not to be proceeded without the leave of the court.

2.  The facts were as follows in respect of the charges to which you pleaded guilty and were convicted.  Vigor Travel Company Limited was a travel agency set up by a Miss Lo Fong, that is, PW1, with her family in about 2000.  She was responsible for the accounts.  You joined the company in March 2005.  Your position at that stage was assistant manager.

3.  Your duties included handling customers, settling travel tickets, issuing invoices to and collecting payments from customers.  Those payments could take the form of cash, cheques or payment by direct transfer.  That is direct transfer to Vigor’s account.  You were required to hand over the payment on pay-in or transfer slip along with the invoice to PW1 for recording and issue of receipts.  On 28 February 2006, you resigned from Vigor.

4.  I deal now with Charge 1, which is the most complex of the charges.  On or about 5 August 2005, you handed to PW1 a faxed copy of an ATM customer advice purporting to show a transfer of $39,422 into Vigor’s Hang Seng Bank account - that is Exhibit P3 - and a copy of a Hang Seng Bank account deposit slip for $19,398 into Vigor’s account, P2, as payment for an invoice for $32,160 for passenger Woon Tsz-man, P4, and an invoice for $31,960 in relation to passenger Woon Tsz-chung, P6.

5.  PW1 made a record in Exhibit P1, that is, the accounts ledger.  She issued two receipts, those being P8 and P9, the latter being for part-payment of P6.  A later examination of Vigor’s account statement for August 2005 - that is P10 - showed that no amount of $39,422 was recorded.

6.  Inquiries revealed that around mid-2005, Mr Woon Wayne Guy, PW2, over the telephone with a Mr Luk, allegedly of a travel agency called IHC Company, had purchased six return air tickets from Hong Kong to Manchester for his two children, Woon Tsz-chung and Woon Tsz-man.  Six invoices from IHC, each for $9,320, those being P102 to P107, were sent to him by post.  Payment for these invoices were settled by cheque for $55,920 and payable to IHC, which is P142.  This was dated 4 May 2005.

7.  A cheque was sent to IHC by post, and PW2 received six receipts by post from IHC.  These are P108 to 113.  Mr Woon never paid for these tickets by ATM transfer nor did he have any dealings with Vigor.  Vigor’s records, being P5 and P7, showed that the two Woon tickets had been ordered by Vigor on their behalf from the airline’s agent, Hong Kong Four Seas Tours.

8.  I turn now to Charge 3.  On or about 2 November 2005, you handed PW1 a faxed copy of an ATM customer advice purporting to show that $12,066 had been transferred to Vigor’s account on 2 November, Exhibit 46, as payment in respect of three invoices issued to Compass Business Solutions Limited and a credit note.  These payment records were recorded by PW1 in the ledger and a receipt issued.  Vigor’s bank statement for November 2005 showed no such transfer.

9.  Around July 2005, PW4 set up a company, Compass Business Solutions Limited.  It purchased air tickets through you for staff members’ business trips.  Invoices sent to him by you sometimes were issued by Vigor and sometimes by IHC.  PW4 purchased tickets for a Chan Wai-ming and Wong Wai-man.  He received two invoices from IHC, not Vigor, and settled both by cheques dated 29 September 2005 in the amount of $4,207 each.  Subsequently, Wong’s ticket was cancelled, and Compass received the refund of $4,007 from IHC.  Vigor’s records show that these tickets had been ordered by Vigor from its agents.

10.  In respect of Exhibits 3 and 46 relating to Charges 1 and 3, respectively, a reference number showed each had been rejected due to insufficient funds in the transferor’s account.  The transferor’s account was, in fact, your son’s in respect of Exhibit 3, and no such transfer was made.  In respect of Exhibit 46, the transferor’s account is your girlfriend’s, and again no transfer was made.

11.  I turn now to Charge 4.  Miss Gan, PW5, was the secretary of Joyce Ma, Chief Executive Officer of Joyce Boutique Limited.  One of her duties was to organise flights for Miss Ma.  For this purpose, she used you.  On 22 November 2005, you faxed a Vigor invoice, Exhibit 116, for $33,950 to Miss Gan.  When the tickets were received, Miss Gan sent a cheque drawn on the account of Miss Ma’s daughter to you.  Exhibit 56 is an invoice bearing the same number as Exhibit 116.  PW5 had never seen this until it was shown to her by ICAC.

12.  Around the middle to the end of November 2005, PW1 received from you five BOC deposit slips and a BOC ATM customer advice of various deposits totalling $169,864.  One BOC slip related to the deposit of this cheque.  You indicated to PW1 that these deposits had been made for the purpose of settling the amounts set out in five invoices particularised in Charge 4 and two returned advices from BOC in respect of two cheques for $20,000 and $30,000.  As a result, the cheque was used for a different purpose than that intended by Miss Gan, and Joyce Ma’s tickets remained unpaid.

Charge 7

13.  Towards the end of January 2006, you handed PW1 BOC customer advice in respect of the deposit of a cheque for $5,441 written by PW3 and two other BOC credit advices in respect of deposits of $350 and $304 with a Vigor’s invoice for $6,472.  A receipt for $6,095 was issued to Mr John.  The invoice was that of a Miss Tao.  PW3 never authorised you to use his cheque.

14.  At the time of the commission of these offences, you were of previous good character.  There is a subsequent conviction of a different nature.  I adjourned the case and called for a probation officer’s background report.  That report has been considered by me.  I did express some concern to counsel about the contents of paragraph 3, which seems to suggest that you are resiling from your admission of guilt.  However, I am assured by counsel that this is not the case and you fully accept that you are guilty of these charges.

15.  The report is extremely helpful and positive.  From the contents and your background, it is clear to me that these offences represent a substantial fall from grace.  In mitigation on your behalf, Mr Ng referred to the report to demonstrate that you were in the past a good son, a good father and provider for your family.

16.  The present offences occurred because your own company established by you, IHC, had experienced cash flow problems.  This company was set up by you in an attempt to revive your financial fortunes and return to the pre-1997 position when the company that you were then running became bankrupt.  I was also told that because of these offences, your son, who is studying abroad, no longer wishes to be associated with you.

17.  Ms Ng told me that the total losses to Vigor were in the region of $90,000 so far as the convictions are concerned.  Mr Wai, on behalf of the prosecution, did not disagree with that figure.  We shall return to that a little later.

18.  I am also told that by means of payment and by means of withholding of wages that you have repaid the money to Vigor that is in dispute.  However, Mr Wai, whilst very fairly accepting that substantial payments have been made, did refer to the fact that there are still sums in dispute.  These seem to be sums over and above the amounts relating to the charges to which you have pleaded guilty.  Also, that seems to me to be a matter for a civil court to decide.  I intend to and, in fact, do give you the benefit of the doubt and accept that a substantial compensation has been rendered.

19.  I noted also, at the time of the commission of these offences, you were a person of clear record.  The offences themselves were committed in the period between August 2005 and January 2006.  These are substantial breaches of trust.  They were deliberate and calculated to deceive.  Whilst there are four separate offences of which you stand convicted, it seems to me that it represents a course of conduct.  Therefore, my approach is to adopt an overall starting point to reflect the criminality of the total situation.

20.  I accept that compensation has largely been repaid.  I accept that at the time that you committed the offences, you were a person of good character.  And I accept that prior to the commission of these offences, you had led a blameless and worthwhile life.  As I have said previously, I accept you are a responsible father, responsible son and a worthwhile member of the community.

21.  Would you stand, please?  I take as a starting point 30 months’ imprisonment.  You are entitled to receive a one-third discount for your plea of guilty.  Therefore, you will go to prison for 20 months on each charge to be served concurrently.  That is a total of 20 months.