CRIMINAL CASE NO. 397 OF 2009
There were six victims involved. They included the late Gall J, Heather Voce, who is a teacher, and four other persons, Hawkins, Weston, Thorp and Colin. Gall J, was the defendant’s former father-in-law. Heather Voce was a teacher at a school in which Gall J’s wife, Barbara, was a head of department. The four persons were the defendant’s business associates and acquaintances.
The total amount of money involved was about HK$19 million and the incidents took place between 2001 and 2005.
I must thank Mr Turnbull for having prepared a very clear summary of facts which have explained the background and described the relevant circumstances in relation to the various charges.
The defendant has frankly admitted the summary of facts. I do not think it is necessary to recite all the details again and here I will simply point out some of the main features and the general pattern concerning what the defendant has done. Of course, this will just be a synopsis.
The defendant, a British national in his 40s, had come to Hong Kong in 1995 and he became a financial consultant here. He came to know Gall J’s daughter, Elizabeth, and they got married in 1997. After that the defendant managed to persuade Gall J to give him money for investment.
On the strength of their relationship and the defendant’s promises of good returns, Gall J had agreed to let the defendant invest the money for him. Gall J gave two sums to the defendant, which were the subject matters of charges 2 and 9. The first amount was, in fact, the pension he received and the other sum was proceeds from certain property in Australia.
Since then, the defendant kept telling Gall J that his investments were having good returns. On one occasion the defendant even asked Gall J to be a guarantor and when the defendant failed to make repayment, Gall J was put in a very embarrassing situation, as he might have to resign from the Bench if he ever became bankrupt.
The defendant had also persuaded Heather to give him money to invest. He secured the trust of Heather because of his relationship with Gall J. Of course, Heather also felt assured because Barbara Gall was a head of department at her school. Heather agreed to invest on a number of occasions. Subsequently the defendant also kept telling her that her investments were doing very well, but then, the defendant’s promises to repay never materialised.
There was a time when the defendant had purchased Henley Group Limited. He became the Chief Executive Officer and, in this position, the defendant had misused, on certain occasions, the company’s letterhead paper to make his bogus investments look more genuine and that was the basis of the five forgery charges.
The defendant also, on different occasions, induced business associates and acquaintances to give him loans for investments. Sometimes he would drop the name of Gall J to lend credence to his scheme and he also made promises of good return or high interest rate to gain the confidence of his targets.
In the case of Colin Wright, the defendant was actually told specifically that the money on loan to him could only be used in Australian property markets. Obviously the defendant had never done so.
In April 2005, Gall J learned that his illness would be terminal so he decided to realise the investments and asked the defendant to make the arrangement of repayment. The defendant made up different promises and excuses to delay the payment. Despite Gall J and his son, Nicholas’ repeated demands, all they got was more empty promises and the money was never repaid; and the same applied to the other victims.
Towards the end, the defendant even took the $4 million which his wife had received as compensation in a personal injury claim, under the pretence that he had to pay off some debts to his clients.
The defendant left Hong Kong in November 2005. He later called his wife saying that he had never invested any of the monies he received from Gall J and he had spent what he had obtained to fund his lifestyle and for repayment of debts. He told Nicholas Gall the same thing in a telephone conversation.
The defendant had returned to Hong Kong on 7 December 2005 but he left for the United Kingdom in the same evening. He never returned to Hong Kong again on his own initiative. The defendant was arrested in February 2009 in the United Kingdom and he was extradited back to Hong Kong in September 2009. He did not challenge the extradition proceedings and, after his return, the defendant was fully cooperative with the police and frankly admitted the offences in the interviews.
The defendant had a clear record. In his mitigation, Mr Harris said he would tender the defendant’s sincere and unreserved apologies to the victims. Mr Harris said that the defendant was very remorseful. He had the courage to return to Hong Kong to face the consequences, and that the defendant had made frank and full confessions to the offences and pleaded guilty on the first available opportunity. However, Mr Harris pointed out that the defendant was not in a position to make any restitution.
Mr Harris said that the defendant’s relationship with the Gall family was very good until things turned sour because of the financial problems. And, the defendant confirmed that he had used the money to buy shares in the Henley Group, to repay debts, and to support a flamboyant lifestyle. Mr Harris mentioned that after the defendant had returned to the United Kingdom he had led a positive life. He was working hard and was engaged to a lady who was prepared to wait for his return for marriage.
A number of letters were placed before this court from the defendant’s family members; his fiancée; his friend and his former employer. They all try to say good things about the defendant.
Clearly the offences committed were very serious. It was not just because of the large sum of money involved but the defendant had abused the trust of Gall J and, knowing that the 5 million was a pension that came after a long dedicated service as a judge. What is more disheartening was that Gall J was suffering from cancer in the relevant period of time and the defendant still took more money from him pretending that it was for some worthwhile investment.
Not only did the defendant cheat the money from Gall J, he had used Gall J’s name to induce others to part with their money as well. When Gall J, towards the end of his life and in his poor physical condition, had eventually realised what had really happened to his savings, and that it was done by a close relative, one could imagine how he must have felt.
I also have much sympathy for Heather Voce. I do not think she was a person with substantial means and yet, by trusting someone who was the son-in-law of a judge, she lost, I suspect a large part, if not all, of her life savings. It is really difficult to understand what the defendant was thinking at the time when he did all this to the Gall family, the teacher and his acquaintances. It cannot be said that it was a momentary lapse as the incident lasted for a few years and these were calculated and deliberate acts of dishonesty.
By his lies the defendant had devastated Gall J, and also destroyed his own family. I do believe the defendant would miss his young son very much after the divorce, but perhaps he should have thought about the consequences before he took the plunge.
Unfortunately there is no prospect of restitution. While I am prepared to accept that the defendant is now really remorseful, but I am afraid that his apologies not backed by any effort of compensation, may not mean too much to the victims.
Mr Harris and Mr Turnbull had helpfully provided this court with a number of authorities for reference purpose. The leading case was, of course, R v Barrick, where the court has stated the relevant factors for the sentencing judge to consider in cases of fraud involving breach of trust. And, clearly, this is a case involving serious breach of trust.
The relevant Hong Kong authority will be the case of Cheung Mee Kiu where the Court of Appeal had discussed and applied R v Clark and converted the categories into the Hong Kong equivalent. It is stated that for offences involving amounts over 15 million the sentence would be 10 years or more; for amounts from 3 million to 15 million 5 to 9 years; and for amounts from 1 million to 3 million 3 to 4 years. Of course, at the end of the day, I must also consider the issue of totality.
In relation to the present circumstances, I consider that the main offences are the theft charges and the conduct constituting evasion and forgery were really just the means by which the defendant had deployed to delay the pressure of repayment.
Coming to the particulars of the offences, for the two theft charges relating to Gall J, that is, charges 2 and 9, the total amount involved was in the region of HK$11 million. I will adopt 9 years for each of the charges. For the charge of forgery, that is, charge 14, I will adopt the starting point of 3 years, and the same starting point for the evasion offence; that is charge 19.
For the five theft charges relating to Heather, that is, charges 4, 5, 12, 18 and 24 the total amount involved was in the region of 6 million. I will adopt the starting point of 6 years for each of these offences.
For the related evasion charges, that is, charges 25, 28, 29 and 30, I will adopt a starting point of 3 years each. For the related forgery charges, that is, charges 13, 20 and 21 I will adopt the starting point of 3 years.
For the three theft charges relating to Hawkins, the amount involved was in the region of HK$750,000. I will adopt the starting point of 3 years for each offence, that is, charges 1, 3 and 6. For the related charge, that is, charge 15, that is, charge of forgery, I will adopt a starting point of 2 years.
For the theft charges relating to Weston, that is, charges 7 and 16, the amount involved was in the region of HK$1.2 million. I will adopt 3 years as the starting point for each offence. For the two related evasion charges, that is, charges 8 and 10, I will adopt 2 years as the starting point.
For the theft charges relating to Thurp, that is, charge 11, the amount involved was in the region of 1.2 million. I will adopt the starting point of 3 years. For the related evasion charges, that is, charges 22, 23 and 27, I will adopt 2 years as the starting point.
For the theft charge in charge 17 relating to Colin, the amount involved was HK$1 million. I will adopt a starting point of 3 years. For the related charge of evasion, that is, charge 26, I will adopt a starting point of 2 years.
Now, the defendant has pleaded guilty and therefore he is entitled to one-third discount on all the sentences. Beyond that, however, despite a very moving speech made by Mr Harris, on behalf of the defendant, I really do not see any other effective mitigating factors that are available to the defendant.
After the application of the one-third discount, then the 9 years would become 6 years. The 6 years would become 4 years. The 3 years would become 2 years and the 2 years would be reduced to 16 months. I will order that the sentences in relation to the same victim to run concurrently.
Therefore for Gall J charges altogether 6 years. For the Heather charges, 4 years, for the Hawkins charges, 2 years; for the Weston charges, 2 years; for the Thorp charges, 2 years; for the Colin charges, 2 years.
Further having considered the issue of totality, I will make the following orders. The sentences for the Hawkins, Weston, Thorp and Colin charges are to run concurrently, in turn this will run concurrently with the Heather charges, but I will order that 2 years from the sentence in relation to the Heather charges are to run consecutively to the 6 years of the Gall J’s charges. Hence the total sentence for the 30 charges will be 8 years.