HKSAR v. KWOK TSZ FUNG, JUSTIN

DCCC 1117/2023

[2024] HKDC 2192

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1117 OF 2023

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Reasons for Sentence

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1.  The defendant was convicted upon his own plea to one each count of fraud and theft and he was convicted accordingly.

Brief Facts

2.  At the material time, Noah (HK)  Management Limited was a company providing car rental services (the Company).  Lam Ho-yeung (PW1)  was one of the owners of the Company. 

Charge 1 – Fraud

The Mini Cooper Incident

3.  On 6 April 2022, the defendant contacted PW1 through WhatsApp, expressing an interest to rent a Mini Cooper (registration number: RD 8191)  (the Mini Cooper).  The defendant and PW1 negotiated a vehicle rental agreement via WhatsApp, under which the defendant agreed to rent the said vehicle from the Company from 1100 hours on 7 April 2022 to 2200 hours on 9 April 2022, the rental of which being HK$1,500 and the deposit being HK$3,000, making a total of HK$4,500.  The defendant agreed to the above terms on WhatsApp.  PW1 then provided the DBS bank account number of the Company (001060123)  and the FPS of the account (ID: 161175443)  to the defendant.  The defendant was requested to transfer the sum of HK$500 to the account as reservation fee, which can be deducted from the deposit.  On the same day, PW1 received a screen capture from the defendant via WhatsApp, which purportedly showing that the defendant had made the relevant payment through Bank of China (BOC)  FPS.  PW1 had not checked if payment had been received. 

4.  On 7 April 2022, PW1 received a screen capture from the defendant on WhatsApp, purportedly showing that the defendant had paid HK$4,000 via FPS of BOC.  PW1 did not check whether the said amount had actually been deposited into the Company’s DBS bank account.  Nevertheless, PW1 proceeded with the transaction.  Having checked the defendant’s HKID card and driving licence, PW1 handed over the Mini Cooper and its car key to the defendant.  The defendant signed on the rental agreement and drove the car away. 

5.  On 9 April 2022, the defendant returned the Mini Cooper to PW1 as agreed. 

The BMW Incident

6.  On 18 April 2022, the defendant contacted PW1 again through WhatsApp, to make inquiries about renting a BMW (registration number: VM 6548)  (the BMW). A vehicle rental agreement was negotiated, under which the said vehicle was to be rented to the defendant from 1500 hours on 19 April 2022 to 2200 hours on 21 April 2022 at a cost of HK$7,300 (rent: HK$1,800; deposit: HK$5,000; additional charge for handing over the vehicle on Hong Kong Island: HK$500).  The defendant was asked to transfer HK$500 as reservation fee. On the same day, the defendant sent PW1 via WhatsApp, a screen capture which purportedly showed that a sum of HK$500 had been transferred to the Company’s bank account through BOC FPS. 

7.  On 19 April 2022, PW1 received a screen capture of BOC FPS from the defendant on WhatsApp, which purportedly showed that a sum of HK$5,800 had been paid.  Without checking whether payments had been made, PW1 proceeded with the transaction.  Having checked the defendant’s ID card and driving licence, PW1 handed over the BMW and its car key to the defendant.  The defendant signed on the rental agreement and drove the BMW away. 

The Mini Cooper Convertible Incident

8.  On 21 April 2022, PW1 received a message from the defendant that he wished to extend the rental period in respect of BMW to 23 April 2022.  As the said vehicle had been rented out already, PW1 suggested extending the rental period for an extra day at a cost of HK$800 and recommended a Mini Cooper Convertible (registration number: UZ 286)  (the Mini Cooper Convertible), property of Havo (HK)  Limited and valued at HK$80,000 at the time of its purchase in December 2020), to the defendant for his use on 23 April 2022.  A vehicle rental agreement was negotiated, under which the said vehicle was to be rented to the defendant from 0024 hours on 23 April 2022 to 2200 hours on 23 April 2022, at a cost of HK$6,000 (rent: HK$1,000; deposit: HK$5,000).

9.  On 22 April 2022, the defendant returned the BMW and its car key to PW1 who in turn handed the Mini Cooper Convertible and its car key over to the defendant.  The defendant drove the car away after signing the rental agreements. 

Discovery of the Offences

Charge 1 - Fraud

10.  At 10am on 23 April 2022, PW1 was informed by the accounting staff of the Company that the payments allegedly shown on the FPS screen captures sent by the defendant could not be verified from the Company’s bank account.  Upon checking the Company’s DBS bank account numbered 001060123, it was found that so far, the defendant had only made one deposit of HK$500 to the account on 7 April 2022. 

Charge 2 - Theft

11.  On the same day, PW1 contacted the defendant via WhatsApp and ordered the defendant to return the Mini Cooper Convertible and to settle all outstanding payments.  The defendant kept using different excuses for not returning the said car.  The Mini Cooper Convertible had never been returned, and the defendant also became out of reach since 10 May 2022.  A report was made to the police. 

12.  On 4 August 2022, the defendant was arrested. 

13.  In the subsequent cautioned interview, the defendant said, inter alia, the following:-

(a)  The defendant found the car rental company on the internet and contacted it via WhatsApp for car rental services (using his own phone number).

(b)  The Mini Cooper, BMW and Mini Cooper Convertible were rented by and handed over to the defendant.

(c)  As regards this Mini Cooper Convertible, the defendant claimed that he had returned it to a man who claimed to be a staff of the Company at Kwun Tong Pier (after being told that the FPS payments did not work).

(d)  The defendant admitted that the signatures on the subject three car rental agreements were his.

(e)  The defendant admitted that he had provided the subject FPS screen captures to the Company.

(f)  The defendant admitted that the BOC account numbered 012-924-2-017999-9 belonged to him.

Bank records

14.  Bank records of the defendant’s BOC account from 1 April 2022 to 15 May 2022 showed that there was only one transfer of HK$500 to the Company by way of FPS on 7 April 2022. 

15.  As shown in the bank records of the Company’s DBS bank account numbered 001060123, in April 2022, there was only one deposit of HK$500 from the defendant to the account by way of FPS on 7 April 2022. 

Mitigation

16.  The defendant was born in Hong Kong and is now aged 29.  He emigrated to the UK with his family when he was aged 7 or 8.  He obtained a bachelor degree in marketing from the University of Kent.  In or about 2015, the defendant returned to Hong Kong and worked as a marketing officer.  The defendant later changed his career as a bartender in Central. 

17.  It is submitted that regarding the fraud charge, a starting point of 24 months will be appropriate (paragraph 19 of the mitigation). It was said the value deceived was about HK$8,154-odd (paragraph 26).  The way of committing the fraud was simple. Regarding the theft charge, it was submitted that the value of the car was about HK$35,000.  Defence counsel maintained that the 2 victim companies were having the same business address and they should be taken as the same business in essence (paragraph 33). 

18.  Defence counsel informed this court via the letter of 20 December 2024 that the defendant’s father has made compensation of HK$8,186 to Noah and a partial payment of HK$15,000 to Havo respectively.  When asked, it is not clear that the victim companies would take the compensation as the final settlement of the issues.  Defence also submitted mitigation letters written by the defendant’s parents and paternal uncle. Defendant’s mitigation was orally given to defendant’s lawyers who reiterated the gist of the mitigation in the mitigation bundle (paragraph 22). 

19.  The defendant’s parents and his brother are now all in court to support the defendant. 

Sentence

20.  It is difficult to understand how a university graduate could avoid his criminal liability when he used his own identity documents to perpetrate the crime.  The defendant even dared not to return the car back to Havo.  The defendant claimed that he had returned the car to a man who claimed to be a staff of the Company at Kwun Tong Pier (paragraph 12(c)  of the Summary of Facts).  When asked, the prosecution confirmed that the Company never repossessed the car.  To this end, I have told defence counsel that the only irresistible inference was that the defendant has resold or given the car to someone with or without any profit.  Defence counsel said he has no submission on this observation. 

21.  In the defendant’s oral mitigation (paragraph 22), the defendant said that since his remand, he has time to reflect on his actions and now he knew that the case is serious and he should not commit the crime in the first place.  He apologised to the people affected, the people around him, and the victims. 

22.  In my view, that is not a sincere reflection in any sense, given the fact that the defendant had used similar means to falsify payment records.  The defendant was convicted of 2 counts of fraud in November 2023. 

23.  Defendant’s father, in his mitigation said the defendant has had a deep reflection and shown genuine remorse.  The defendant is determined to turn a new leaf.  The defendant’s mother said the defendant has an optimistic personality and will start afresh soon to contribute to society again.  The defendant’s uncle said the defendant was an active and intelligent kid. He is filial to parents. 

24.  The defendant used screen captures to defraud the Company and the falsified transaction records can be seen in MFI-1.  Only one payment was confirmed and the rest was false.  Given the lax attitude of the Company to verify, the defendant was able to prolong his fraud and a number of cars were provided to the defendant.  It is not a street deception case, but the defendant’s false representation was “supported” by the falsified records. The court can draw the inference that the defendant lied about the return of the car.  The car until now has not been recovered.  The Company reported the case in May 2022 and the defendant was only arrested in August 2022. When asked about the defendant’s previous record, I was told that the defendant was a wanted person since April 2021 and was on police bail relating to the fraud charges which was committed back in 2018.  And that provides the aggravation of the case. 

25.  As false instruments were used, for Charge 1, I would adopt a starting point of 2.5 years.  It is a wise move for the defendant to plead guilty at the earliest opportunity.  He can get a full 1/3 discount, and the sentence is reduced to 20 months.  He has compensated the Company, and by discretion, I would reduce the sentence further by 2 months. Hence, I sentence the defendant to 18 months’ imprisonment in respect of Charge 1. 

26.  As regards Charge 2, the whole car was stolen, apart from the fact that false payment records were made. The defendant has compensated the Company for HK$15,000.  The gravity of this offence is heavier and I would adopt a starting point of 3 years.  With plea, the sentence is reduced to 24 months.  I would also reduce the sentence by 2 months to reflect the compensation.  I sentence the defendant to 22 months in respect of Charge 2. 

27.  On the other hand, I have to consider the totality principle, and order that 6 months of the 1^st sentence be served consecutively to the 2^nd sentence, making it a total of 28 months.