HKSAR v. LAU KWAN KIT

DCCC528/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 528 OF 2010

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of fraud, contrary to section 16A of the Theft Ordinance, Cap.210., and the particulars are that he between 10 March 2008 and 24 May 2009, by deceit, falsely representing that a company which he had secretly opened, called the Vi Fong Provision Supply Company, had provided toilet tissue paper to the victim’s companies to the sum of over HK$1 million. There was no such toilet paper provided.

2.  Now, the facts which are admitted is that the defendant had been working for the victim since the victim opened his dispensaries.  Initially, there were three dispensaries and the defendant was employed to manage these three dispensaries.  In 2002, the owner of the victim company then set up another company to operate three other dispensaries, and the defendant oversaw all six dispensaries.

3.  On 19 May 2009, the defendant was dismissed by his employer for poor performance.  The victim then found that there were 318 invoices of a company called Vi Fong Provision Supply Company purporting to supply tissue paper to the four dispensaries totalling over $1 million. The victim realised that he had already issued 33 cheques totalling $799,050 in favour of Vi Fong by then. 

4.  Subsequent investigation showed that Vi Fong was set up in March 2008 by the defendant as sole proprietor.  The victim then contacted the defendant, and on 15 June 2009, the defendant appeared at the victim’s office and admitted that he had indeed committed the deception of over $1 million.  The defendant promised to make repayments, and between 17 June and 2 July 2009, the defendant then deposited a total of $590,000 into the victim’s bank account as partial payment for the $799,050.

5.  On 16 July 2009, the defendant was arrested, and under caution, the defendant admitted the offence.

6.  The defendant has a clear record and he is aged 31.  In mitigation, as Mr Ho pointed out, this is a very serious offence of breach of trust.  The only mitigating factor I can see is that the defendant is remorseful because he did admit his guilt to the victim and also at the first earliest opportunity in court.  And also, a strong mitigating factor is that the defendant has repaid $590,000 and there is only an outstanding of $209,000 of the amount that had been taken from the victim.

7.  As the defendant has a clear record, I do have to consider all form of sentencing options.  This is a serious offence and it warrants a custodial sentence.  I have considered in the case of the defendant being of a clear record if in his case, a custodial sentence is appropriate.  I have referred to Sentencing in Hong Kong, the fifth edition of Cross and Cheung at page 81 where it was pointed out where the authors refer to the case of Langridge v the Queen [2004] 126, it was said that any claim to mitigation by the accused on account of a clear record was negatived by the fact that she had been committing crimes against her employer for a period of years.

8.  In HKSAR v Law King Yip & Others Crim App 369 of 2003, it was said that the fact that the accused was a party to a conspiracy to defraud over a period of many months meant that her good character availed her very little in mitigation of sentence. 

9.  In this case, the defendant committed a serious breach of trust.  The offence happened over a period of over a year.  This was well-planned because the defendant had set up a company just before starting this fraud in order to practise his fraud on the victim, and this would not have been discovered had the defendant not been dismissed for poor performance. 

10.  So I consider that on these facts, an appropriate starting point after trial would be a sentence of 3 years’ imprisonment.  Because the defendant has pleaded guilty, he is entitled to one-third discount which will bring it down to 2 years’ imprisonment. 

11.  The defendant has also, as I have said, voluntarily returned a large part of the money owing to the victim.  So, in that case, the court will recognise that as a mitigating factor and reduce that sentence by 8 months.  So the defendant will go to prison for 16 months.