HKSAR v. WAN HON HUNG JOHNNY AND ANOTHER

DCCC 722/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 722 OF 2013

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Reasons for Sentence

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1.  The two defendants have been convicted after trial of conspiracy to steal a total of $16 million.

2.  The circumstances of the offending are set out in my reasons for the conviction of the defendants.  I do not propose to rehearse them again for the sentencing exercise.

3.  I obtained background reports on both defendants.  The contents of the reports are reflective of the evidence I heard about them during the course of the trial.  They are members of a hardworking, close and loyal family.

4.  The 1st defendant is now aged 53.  He has two grown-up sons, one is still at university.  He has some previous criminal offending and some gambling convictions.  The criminal offending was when he was very young and there is no suggestion of any kind that the gambling played any part in this case at all, so I will disregard it for the purpose of this sentencing exercise.

5.  He was employed by and with the deceased and had been part of that family business since 1994.  He enjoys, as I understand, close family relationships and enjoys close support and care from his family.  It is a very positive report.

6.  The 2nd defendant is now aged 54.  She has a previous clear record.  She has worked in places such as garment factories and, more, of late was employed in what is called the Tokyo Computer Accessories Company since 2004 which is part of the family business.  She is a divorced lady. She has two sons who are grown up.  She is also described as hardworking.  She is described as obedient to her parents, a good mother and has, I think, a somewhat -- came from a traditional family.  She enjoys broad family support.  I have also had some evidence from her counsel that she makes contributions to charitable organisations.

7.  I have also considered letters from members of the family, they are supportive of both defendants.

8.  Both reports are favourable.  Through these reports and also from the evidence I heard at the trial, it is difficult to see how people such as these became involved in criminality.  Hence, my assessment is, save for the peculiar circumstances of this case, they would not have been.  If the deceased had not died, or he had made a will, this should never have happened. 

9.  I have to assess their prospects of re-offending, I see no prospect of them re-offending. 

10.  In considering the appropriate sentence, I need to consider the nature of this case and the broader circumstances.  Those will of course assist me in arriving at the starting point for any sentence I will impose.  I will then need to consider any deductions that will be necessary from that point.  Those would reflect such matters as the restitution of the entire sum of money, the time it has taken for the matter to come to court and the high level of procedural co-operation from the defendants in this case. 

11.  The case involves a considerable sum of money.  I consider that a theft of such a large sum of money, a starting point for sentence after trial could be in the region of 4 to 5 years’ imprisonment. However, this case arises out of a family situation, not a commercial situation.  As I said earlier, without the death of the deceased and his failure to order his affairs properly, I anticipate there would be no criminality by the defendants; they would not have felt the need to act.

12.  The preservation of all the money taken from the estate and up until the repayment, subject to the High Court order in September, is suggestive of the fact that the primary motivation for this crime was not a personal enrichment of the 1st and 2nd defendant, but the retention of the deceased’s close blood family control over the movable assets contained in the bank account to the exclusion of the wife of the deceased who on her own admission at that time was a recovering drug addict.

13.  Furthermore, I bear in mind the defence submission that there is no evidence of any removal of the money beyond the jurisdiction, no spending of the money, no change in lifestyle by either of the defendants as a result.  Nevertheless, it is still a serious matter, to deprive the estate of such a large sum of money in a deceptive way practised by the defendants. 

14.  I consider, having regard to the size of those resources, a sentence of imprisonment is inevitable.  However, in allusion to some of the matters I have raised, I consider a lower starting point will be appropriate in this case.  I consider the appropriate starting point of sentence, having regard to the large sum of money involved, to be one of 39 months’ imprisonment. 

15.  Now, on necessity that it is not the final sentence for that, there will be deductions from that sentence.  I must take into account the preservation of the monies concerned and their restitution to the High Court.  Both defendants had the money under their control for some time, and there was full compliance of the High Court injunction, in fact more money was paid back than was taken.   

16.  I consider a deduction of further 10 months which should represent that early restitution.  There is of course the time the matter has taken to get to court and the procedural co-operation by the defendants.  The matter has been under consideration since September 2011 and did not come to court until March of 2014.  There is no criticism of the police or the prosecution in respect of this.  Matters as complex as this take time.  But both the defendants have had this hanging over them for that period which has caused stress and uncertainty, and that can be represented in a deduction from the sentence. 

17.  There has been a good level of procedural co-operation in this case.  The potential issues are narrowed down considerably.  The financial evidence was agreed and that was the largest part of the case.  The trial has been conducted with economy and precision by all involved. I consider these matters can be represented by a further deduction of 3 months’ imprisonment. 

18.  I have considered whether the sentences in respect of the defendants should be assessed at a different level, and obviously their cases must be assessed separately.  However, there is a common culpability here.  I have also had to consider if the sentence of imprisonment in this case should be brought in immediately or should be suspended.

19.  Both counsel for the 1st and the 2nd defendants have very properly reminded me of the unusual circumstances of this case and have reminded me some of the compelling areas of mitigation that I have referred to.   However, I do consider that the circumstances that I have been referred to are not, I would describe, sufficiently exceptional to allow me to suspend any sentence of imprisonment that I would impose. 

20.  My final sentence of imprisonment in respect of the 1st and 2nd defendant on this charge of conspiracy to steal is one of 26 months’ imprisonment on each defendant.