HKSAR v. WONG WAI YU

DCCC 904/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 904 OF 2015

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REASONS FOR SENTENCE

The defendant faces 3 charges of "Fraud" (Charges 1, 2 and 4) and 1 charge of "Evasion of liability by deception" (Charge 3).

2.  She pleaded guilty to Charges 1, 3 and 4.  The prosecution applied to leave Charge 2 in the court file; not to be proceeded against her without leave of court.  I granted the application.

3.  The defendant was a real estate agent.  She deceived her clients a total sum of $1.2 million.

Summary of Facts

Charge 1

4.  Madam CHEUNG (PW3) is the sister-in-law of Madam ZHUANG (PW2).  PW2 was the registered owner of a flat situated at 2^nd Floor, Nos.4-6 Tsing Yuen Street, Tai Po ("Property 1").

5.  In September 2014, PW2 intended to sell Property 1.  She asked PW3 to assist because PW2 is a mainland resident.  They appointed the defendant, proprietor of Dragon Property Agency ("Dragon"), to be their real estate agent.

6.  Property 1 was agreed to be sold to Madam TSE (PW1) at $2,350,000.  However, according to PW1, at the time of signing of the Provisional Agreement for Sale and Purchase (the "Provisional Agreement"), the defendant advised her to state the purchase price as $1,500,000 in the Provisional Agreement; whereas the balance ($850,000) could be passed to the vendor through the defendant.  As such, PW1 could pay less stamp duty.

7.  On the other hand, according to PW3, the defendant told her that the sale price would be $1,500,000; whereas the balance ($850,000) would be regarded as "renovation fee", payable at the time of signing of the formal Agreement for Sale and Purchase.

8.  On 22 September 2014, PW1 signed the Provisional Agreement and passed a cashier order in the sum of $850,000 to the defendant.  A receipt for the said sum was issued by Dragon (though wrongly dated).  The cashier order was deposited into Dragon's bank account on the same day.

9.  Pursuant to the Provisional Agreement, a formal Agreement for Sale and Purchase (the "Formal Agreement") would be signed and a further deposit would be paid on 30 September 2014.  The sale and purchase would be completed on 22 October 2014.

10.  At the time of signing of the Formal Agreement, the defendant told PWs 2 and 3 that the purchaser was still raising money for the "renovation fee" and that the defendant would follow up the matter.  PW2 decided not to sign the Formal Agreement.

11.  Despite the cancellation of the sale, the defendant did not return $850,000 to PW1.  At the end of October 2014, the defendant gave PW1 a cheque for the sum of $800,000 (post-dated 4 November 2014); whereas the remaining $50,000 was levied as handling charge.

12.  On 4 November 2014, the defendant phoned PW1 telling her that there was no money in her bank account and that PW1 should not bank in the cheque.  Since then, the defendant went out of touch.  PW1 made a report to the Police on 24 November 2014.

Charge 3

13.  Mr. CHAN (PW4) was the registered owner of 4 properties, namely (i) 3^rd Floor, No.3 Nam Shing Street, Tai Po ("Property 3"), which were divided into 4 units with a total monthly rental income in the sum of $17,284; (ii) Room 407, Tai Wo House, Tai Po ("Property 4"), which were divided into 5 units with a total monthly rental income in the sum of $21,446; (iii) 2 shops situated at Ground Floor, 25 Po Yik Street, Tai Po (collectively "Property 5"), which produced a monthly rental income in the sum of $36,300; and (iv) a stone house situated at No.115G, Ling Shan Tsuen, Fanling ("Property 6") with a monthly rental income in the sum of $9,800.

14.  Since 2013, the defendant had been collecting the rent of Properties 3 to 6 on behalf of PW4.  The actual collection of rent was carried out by Madam HO (PW5), a staff member of Dragon.  On the 20^th day of each month, PW4 would go to the office of Dragon to collect his rent.

15.  On 20 November 2014, PW4 went to the office of Dragon to collect his rent.  According to PW5, the defendant had left her with 2 cheques for a total sum of $53,336 drawn in favour of PW4 and asked her to pass them to PW4.  PW5 did so, but the cheques were bounced.

Charge 4

16.  In October 2013, PW4 purchased Property 6 at $1 million with the defendant's assistance.  After the purchase, the defendant had been collecting its rent on behalf of PW4.

17.  On 13 November 2014, Madam FU (PW6) appointed Mr. NGAI (PW7) of Fanling Property Agency ("FPA") as her property agent for his intended purchase of Property 6.  They visited Property 6 in that afternoon, during which the defendant claimed to be its owner.  PW6 offered to purchase Property 6 at $850,000, which was accepted by the defendant.

18.  By a Sale and Purchase Agreement dated 14 November 2014, the defendant sold Property 6 to PW6 at the price of $850,000.  The initial deposit was $100,000; whereas a further deposit in the sum of $200,000 would be paid on 17 November.  The completion date would be 4 February 2015.  The defendant also produced a number of documents to PWs 6 and 7, which purported to show that PW4 had agreed to sell Property 6 to the defendant on 18 March 2014; and that the defendant was the sole owner of Property 6; or otherwise, the defendant would refund all deposits to PW6.

19.  On 14 November 2014, PW6 paid the initial deposit ($100,000) in cash.  On 17 November, PW6 gave PW7 a cheque in the sum of $200,000 drawn in favour of the defendant as payment of the further deposit.

20.  PW6 visited Property 6 again in late January 2015.  She saw decoration works in progress, and immediately made enquiries with PW7.  The defendant told PW7 that it would be better if the tenant was willing to decorate the property.  PW6 was satisfied with the explanation.

21.  A week later, the defendant indicated to PW7 that if PW6 could pay another $300,000 as deposit, the defendant would be prepared to give a discount of $50,000 off the purchase price.  PW6, however, did not have enough money.  PW6 visited Property 6 again 2 days later and was told by the tenant that its owner should be PW4, not the defendant.  Upon further enquiry, PW5 (Dragon's employee) informed PW6 that PW4 had never sold Property 6 to anyone.  PW4 also confirmed that he did not sell Property 6.

22.  On 2 February 2015, PWs 6 and 7 met the defendant at FPA.  The defendant insisted that she should be the owner of Property 6.

Arrest of the Defendant

23.  The defendant was arrested for Charge 1 on 8 December 2014.  Under caution, she admitted, inter alia, that she received the cashier order ($850,000) from PW1 and had deposited the same into Dragon's bank account.  She also admitted having issued a cheque ($800,000) to PW1, but claimed that she gave it to PW1 because PW1 kept chasing her for the refund.  The defendant claimed that she could not collect the money from PW2 and had asked PW1 not to bank in the cheque.

24.  The defendant could not be located afterwards and was placed on the Wanted and Stop List on 29 May 2015. She was stopped at the Lok Ma Chau Control Point on 6 June 2015.

25.  On 11 June 2015, PW6 positively identified the defendant at an identification parade.

Mitigation & Sentence

26.  The defendant is 45 and married with 3 daughters (2 of them are residing with her; aged 18 and 17).  She has 1 conviction record (a minor offence for which she was fined). Defence counsel Mr. SHAW informed me that the defendant came to Hong Kong from the mainland in 1995. She began working as a real estate agent in 1997.  After her daughters were born, she stayed home to look after them.  She returned to the trade in 2003. 

27.  In mitigation, Mr. SHAW submitted that around 2013/14, the defendant's relationship with her husband turned sour.  In June 2014, her husband suggested separation.  As a result, the defendant sought relief by gambling in Macau.  She soon lost over $1 million. Her only conviction record ("Fighting in a public place") was the result of having a dispute with the loan sharks outside her shop.  Mr. SHAW further submitted that the defendant needs to support her daughters (who are still in school) as well as her parents in the mainland.  All 3 offences were committed within a month because she was chased by loan sharks.

28.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  Gambling certainly would not relieve stress or save a marriage.  And when gambling debts accumulated, there must have been proper ways for the defendant to seek help and to deal with the loan sharks. 

29.  This case is a classic Barrick type of breach of trust situation.  The defendant abused her position as a real estate agent.  According to HKSAR v NG Kwok Wing [2008] 4 HKLRD 1017, if the amount stolen is between $250,000 and $1 million, the sentence ranges from 2 to 3 years' imprisonment; between $1 million and $3 million, 3 to 5 years' imprisonment.  It is not an easy task and saddens me to send someone like the defendant, who has been an upstanding citizen all her life, to prison.

30.  The sums involved in Charges 1, 3 and 4 are respectively $850,000, $53,336 and $300,000.  I adopt 30 months, 9 months and 24 months as the respective starting points.  A one-third discount is given for the guilty plea, reducing the respective sentences to 20 months, 6 months and 16 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to imprisonment for 20 months, 6 months and 16 months respectively for Charges 1, 3 and 4.

31.  The total amount involved in all 3 charges is $1.2 million.  I consider a global starting point of 3 years' imprisonment to be appropriate.  With the guilty pleas, the overall sentence is reduced to 24 months.  Hence, I order the sentences to run in the following manner :-

(i) 2 months in Charge 3 consecutive to Charge 1; and

(ii) 2 months in Charge 4 consecutive to Charges 1 and 3.

Thus, arriving at a total prison term of 24 months.