HKSAR v. KWUN SAI LEUNG

DCCC 1241/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1241 OF 2011

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REASONS FOR SENTENCE

        The defendant pleaded guilty to a charge of "Fraud". The defendant deceived money from residents of a public housing estate totalling to a sum of $312,692.

Summary of Facts

2.  During the offence period, the defendant was an incumbent member of the Shamshuipo District Council.  He was also the chairman of an organization named "Lei Cheng Uk Will ("LCUW").  About May 2011, the defendant began to promote 2 Macau trips organized by LCUW.  He instructed his assistant to distribute promotion posters and leaflets within the Lei Cheng Uk Estate.

3.  The posters and leaflets advertised for 2 Macau trips departing on 9 and 23 July 2011 respectively.  The fees were $1,388 for adults and $1,288 for children.  The defendant was solely responsible for collecting the trip fees.

4.  A total of 224 residents of Lei Cheng Uk Estate (including their relatives and friends) paid to join the 2 Macau trips.  Their trip fees (plus insurance charges in some cases), which amounted to a total sum of $312,692, were paid in cash or by cheques to the defendant by 57 participants. Receipts were issued to the participants by the defendant.

5.  It transpired that the defendant had only made a tentative verbal reservation with CS Happy Tourist Travel Limited ("CS Happy") for 88 places of a 2-day trip to Macau departing on 9 July 2011. No reservation for the trip departing on 23 July was ever made by the defendant.  The proprietor of CS Happy confirmed that the fees for the 9 July trip were $1,399 for adults and $1,299 for children.  According to their agreement, the defendant was required to pay a deposit in the sum of $52,800 ($600 for each reserved place) on or before 25 May 2011.  But the defendant had failed to do so.  Thus, the reservation was cancelled on 13 June 2011.

6.  The manager of CS Happy (Mr. YUEN Chung-man) had notified the defendant by fax and by phone about the termination of their agreement.  When CS Happy became aware of the defendant's continuous selling of tickets for the Macau trips, Mr. YUEN sent an email to the defendant on 14 June 2011 stating in clear terms that the trip had been cancelled due to the defendant's default of deposit payment.

7.  On 8 July 2011, the defendant informed the participants of the 9 July trip that the tour was cancelled due to change of hands in the management of CS Happy.

8.  After a report was made, the defendant surrendered himself to the Police on 9 July 2011.  Remaining tickets for the trips and the official stamp of LCUW were seized from the defendant's office.  An Excel document containing data of the participants of the 23 July trip was retrieved from a notebook computer seized from the defendant.

9.  In his cautioned interviews, the defendant admitted, inter alia, that as a District Council member, he was not allowed to organize activities which involve monetary payments.  He therefore used the name of LCUW, a local organization established by him, to organize the Macau trips.  The defendant liaised with CS Happy in February or March 2011 about the trips.  He claimed he had requested CS Happy to reserve 88 places for each trip.  He started to collect fees from the participants in May 2011.  Both trips were oversubscribed, but he did not inform CS Happy thinking that it would still be alright.  The defendant did not pay the deposit to CS Happy by the deadline.  He continued to sell tickets for both trips thinking that CS Happy would still arrange places for him.  Finally, he used the collected trip fees to gamble in Macau and had lost them all.  He told the participants that the trips were cancelled due to the travel agent's failure to make reservations.

Mitigation & Sentence

10.  The defendant is now 31.  He has 1 conviction record involving 2 offences of "Theft" (dated August 2010), for which he was sentenced to a total of 2.5 months' imprisonment.

11.  Defence counsel Mr. WONG informed me that the defendant has been a member of the Shamshuipo District Council since 2004.  A handwritten record of the defendant's service provided to his community was placed before me.  Mr. WONG submitted that the defendant has made full and frank admissions to the Police.  The defendant offers his apologies to the Lei Cheng Uk residents.  The present offence is attributed to the defendant's obsessive gambling.  Upon the defendant's approach for professional help, a Rev. SIU of the church attended by the defendant advised and accompanied him to surrender to the Police.  A letter from Rev. SIU was also placed before me; its contents are duly noted.

12.  Mr. WONG submitted that the defendant now realizes his gambling problem.  Upon legal advice, the defendant decided to plead guilty to the charge.  The Prosecution was informed of his intention at an earlier time, which spared the court attendance of over 50 residents.  The defendant frankly admits that he is unable to repay all the residents; however, he is genuinely remorseful for what he has done.

13.  The defendant is not a fresh offender of crimes involving dishonesty.  He received a short prison sentence in August 2010 for 2 offences of "Theft"; yet he committed a more serious offence in less than a year.  This time, he deceived over $300,000.

14.  In my view, as revealed in the Summary of Facts, the defendant's intention to organize the 2 Macau trips is highly doubtful.  He did not even make a reservation for the trip departing on 23 July.  He deliberately failed to pay the required deposit to CS Happy.  Knowing that the reservation for the 9 July trip had been cancelled, he continued to sell tickets and to accept payments.  I have all the reasons to infer that the 2 trips were a scam orchestrated by the defendant to fund his gambling in Macau.

15.  I accept that in the present case, it does not involve any breach of trust by an employee against his employer.  However, the fact that both trips have attracted over 200 participants clearly shows that the Lei Cheng Uk residents had placed reliance on the defendant being a District Council member and has served the Shamshuipo community for a number of years. I take the view that this case also involves an element of breach of trust, which is, if not more serious than, at least of similar culpability to the CHEUNG Mee Kiu[1] type.  I will follow the sentencing guidelines set out in that case.  In other words, for $250,000 to $1 million, the sentence ranges from 2 to 3 years' imprisonment.

16.  The defendant deceived payments from 57 participants amounting to a total sum of $312,692.  In reality, over 200 participants were affected.  Their weekends were spoiled and they were no doubt disappointed by their financial loss as well.  I consider these as aggravating factors.  I will adopt a starting point of 27 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 18 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is therefore 18 months.