HKSAR v. LEE GODWIN also known as NGAI WAI WOON

DCCC 1027/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1027 OF 2013

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Reasons for Sentence

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1. Defendant, you have pleaded to a single offence of fraud, contrary to section 16(a) of the Theft Ordinance, Cap.210.

2. You admitted the brief facts and I convicted you.

3. The facts were as follows.

4. On 2 August of 2012, a “Mr Lee” contacted Chan Kwok-ming Leonard (PW3) to say Shop No. 1, Ground Floor, Wun Sha Tower, Wun Sha Street was for sale.  PW3 advised his ex-colleague Lee Man-chun (PW2) of the availability of the premises.  PW2 then informed Wong Yat-shing Sunny (PW1) of Peace Era Limited (parent company of the intended purchaser, Access Era Limited).  PW1 confirmed their interest in purchasing.

5. A land search revealed that it was part of the estate of Lee Kuen and Lee Godwin was the sole executor of the estate.  His ID card number was D672984(4).

6. On the 16 August of 2012, PW2 and PW3 met to confirm that PW1 had signed on behalf of the purchaser the provisional sale and purchase agreement.  The purchase price offered was $25,800,000, with a deposit of $1.29 million.

7. PW3 and his colleague, Hui Chi-wah John (PW4), met Mr Lee, who indicated he wanted $26 million with a deposit of $1.3 million to be paid by cheque in the name of “Lee Godwin”.

8. PW3 and PW4 discussed this with PW1, who agreed to $26 million with $1.3 million deposit.  A cheque for $1.3 million was issued to Lee Godwin.  PW3 and PW4 met Mr Lee again, confirmed the ID number and passed over the cheque.

9. As the premises were rented out, PW1 instructed PW2 to enquire if the tenant wished to extend the lease on 30 August 2012.  The tenant told PW2 they had never been informed by the landlord that the premises were to be sold.  The police were informed. 

10. Lee Goodwin (PW5), the executor of the estate of Lee Kuen, was located and said the premises were rented out and there was no plan to sell.  In 2003, he had lost his ID card.

11. The cheque for $1.3 million had been deposited into a bank account of the China Construction Bank, which had been opened by Lee Godwin on 26 July 2012, using the ID card E140960(7).  The money had been withdrawn.

12. Investigation with the Immigration Department revealed your original name to be Ngai Wai-woon.  On 19 June 2012 you had changed your ID by deed poll to Lee Godwin.  On 6 August of 2013 you were arrested entering Hong Kong at Lo Wu.

13. In a subsequent video recorded interview under caution, you said the following:

(1) about the beginning of June 2012, you were asked by a Ho Fai in China to change your name for the selling of premises;

(2) you submitted the change of particulars to the Immigration Department;

(3) Ho Fai instructed you to sign the provisional sale and purchase agreement;

(4) you were not the registered owner of the premises;

(5) you opened the bank account on Ho Fai’s request to deposit the cheque of $1.3 million;

(6) you signed to withdraw the money, giving $1.2 million to Ho Fai and receiving $100,000 by way of reward yourself.

14. You admitted to nine previous convictions on three separate occasions, two of which involved dishonesty. 

15. You also accepted that you were in breach of three suspended sentences of 4 weeks each, to be served concurrently.  Those suspended sentences were imposed on 4 August 2011, were to run for two years.

16. Taking into account your advanced years and your criminal record, I asked for a background report from the probation service. That is now before me and I understand you agree its contents and Mr Chan, on your behalf, entered mitigation. 

17. He confirmed that you did agree the contents of the report. 

18. You are 76 years of age, married with a child of 3.  Your wife is present today in court offering her support. 

19. You came to Hong Kong at the age of 19 for a better life.  Initially you were gainfully employed as a barber, but committed the first of your offences when you were 27.  Your family emigrated to the USA, but you were left behind because of that conviction. 

20. In 1976, there was a very major development in your life in that you were convicted of murder.  As a result of that, you spent your middle age in prison, receiving no visitors as your family were abroad. It was not until the year 2000, when you were now aged 63, that you were discharged. 

21. To your credit, you became gainfully employed and this lasted until 2012.  You resumed work as a barber, but then became the keeper of a warehouse.  That latter job was lost when the warehouse closed and as a result you committed this offence.

22. In 2002 you met the lady who was to become to your wife in 2006.  From that union, a daughter was born in 2011.  That daughter is aged 3.

23. Both you and your wife have written letter to the court.  You expressed remorse for what you have done.  Your wife expresses support and speaks well of you as a father and as a husband. 

24. I understand that, given your age, when you are released from prison, as you have realistically faced up to the prospect of imprisonment, it is the intention that your wife will work and you will care for your daughter.

25. Referring to the offence itself, Mr Chan made the following submissions, that:

(1) this was not a breach of trust situation (though, by way of comment, I would say comes perilously close to);

(2) there was no international dimension and I accept that;

(3) you were not the mastermind;

(4) you only received $100,000 by way of reward. This used to pay off debts to friends. The rest was used for your living expenses when you were in the Mainland for about a year;

(5) your return in August of this year was voluntary.

26. You accept that the suspended sentence has to be imposed. 

27. However, Mr Chan goes on to request on your behalf a discount, given your advanced years. 

28. Mr Chan referred me to three sentencing authorities. 

29. With the greatest respect, I could find little guidance in the first that he referred me to.  However, the case of HKSAR v Cheung Ching Fai, CACC 297/2009, does provide some guidance in that that involves three offences of a very similar nature to the present one.  He also referred me to a somewhat stale authority of R v Chan Tak Sang & Others, Court of Appeal CrApp No. 46 of 1987.  In that case, the defendant aged 72 was allowed a discount because of his advanced years.

30. I turn now to the sentence.

31. You are an old man of 75, approaching 76, with a wife and a young daughter to care for.  I accept that you are a caring husband and father. 

32. Your criminal record, whilst it is not lengthy, is serious. 

33. I accept that you were not the mastermind in this enterprise.  I accept that your share of the proceeds was very limited and limited to $100,000.

34. However, I do note that the scheme itself was somewhat sophisticated, involving changes of name and setting up of bank accounts and a deliberate deception perpetrated on the victim.

35. On the last occasion, Mr Tam made an application regarding compensation, but it is clear from the probation officer’s report, from what been said there is no prospect of you being able to pay $1.3 million.  That must be left to a civil court to address.

36. My approach is to take a starting point of 3 years’ imprisonment.  You will receive the usual one-third discount.

37. I also accept and intend to give you a small discount because of your advanced years.  That discount would have been somewhat larger if you had been a person of clear record, but you are not and, of course, the suspended sentence will have to be imposed.

38. The starting point of 36 months is reduced to 24 months. 

39. Given your age, approaching 76, a further discount of 3 months will be allowed, making 21 months’ imprisonment. 

40. The suspended sentences, three concurrently, will be imposed consecutively. 

41. That additional 4 months makes a total of 25 months’ imprisonment.

(Clarification re suspended sentence)

42. In fact, it is 4 weeks’ suspended sentence.

43. So, you will go to prison for 21 months and 4 weeks.