HKSAR v. LAM SEE CHUNG STEPHEN

DCCC 626/2020

[2021] HKDC 230

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 626 OF 2020

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REASONS FOR SENTENCE

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1.  Defendant is convicted on his own plea and agreement to summary of facts to 2 charges of fraud, contrary to section 16A of the Theft Ordinance, Cap 210.

Facts

2.  As succinctly summarised by defence counsel, between 12 and 26 May 2017, the defendant falsely represented to PW1 on numerous occasions that he was acting for Kowloonbay International Trade and Exhibition Centre to look for a contractor for provision of meal boxes, breakfast, supper and dinner, for a one-year contract.  PW1 paid a total of $236,000 for the purpose of tendering for the contract.  However, after payments, the defendant disappeared (“1st charge”).

3.  Between 26 May and 5 June 2017, the defendant falsely represented to PW1 and PW2 that he would like to set up a company with PW1 and PW2 for the purpose of bidding future contracts for the provision of meal boxes.  PW1 and PW2 totally paid the defendant $25,246 for the purpose of setting up the company. However, after payments, the defendant disappeared (“2nd charge”).

4.  The defendant was arrested on 5 May 2018.

Criminal record

5.  Defendant has 12 previous criminal records involving convictions of 44 charges, mostly fraud and obtaining property by deception or evasion of liability charges between the years 2009 and 2018.

Mitigation

6.  Defendant was born in Hong Kong.  He is aged 38. 

7.  He received education up to Higher Diploma in a computer related course. 

8.  He was a casual worker at the time of arrest and he worked as an information technology technician. 

9.  He got married in 2006 and has one son aged 9. 

10.  His wife suffered from mental problems since the year 2015.  She was diagnosed to have brain cancer and she should have received an operation at the end of November 2020. 

11.  His son is now under the care and protection order, admitted to the care of his parents-in-law. 

12.  The defendant’s parents are both aged around 70 and are retired persons living apart from the defendant.  His younger brothers also live apart.

13.  Defence counsel submitted that the defendant committed the present offences because of overspending and he committed the offences to earn quick money.  It was said that from the end of 2011 to October 2014, he spent his time in prison. When he was discharged from prison, he was determined to turn a new leaf.  Yet, because of his criminal record he has difficulty in looking for a decent job and had to engage in casual work.  He said that his wife who suffers from mental problem keep demanding the defendant for money.  Being unable to meet his wife’s demand, the defendant then resorted to fraudulent practice.  It was said the defendant had severe financial problems. On one occasion, he had to steal baby milk powder for his son in year 2018 and as a result of which he was charged for shoplifting and was sentenced to 7 days’ imprisonment.

14.  It is also submitted by defence counsel that there is no sentencing guideline for the offence of fraud and this court is referred to the case of HKSAR v Wong Chun Hin, DCCC 265/2019, where the case of HKSAR v Cheung Mee Kiu, CACC 99/2006 was considered.  The defendant in that case pleaded guilty to 5 counts of fraud, 1 count of attempted fraud and 3 counts of theft, and it involved a total sum of $496,050. There is no breach of trust element and the court made a downward adjustment to the guideline in the Cheung Mee Kiu case.  According to the Cheung Mee Kiu case, if the value of property is between $0.25 million to $1 million, the sentencing guideline is between 2 to 3 years’ imprisonment.

15.  Defence counsel submitted that an appropriate sentencing starting point after considering the totality principle in this case would be around 18 months’ imprisonment. 

16.  He submitted that the 2 charges are really part of the same transaction and he asks that the sentence for the 2 charges be made concurrent.  He also submitted that as the defendant has numerous similar convictions which constitute an aggravating factor, the final sentence should be enhanced with 3 months’ imprisonment bringing the sentencing starting point to 18 months’ imprisonment. 

17.  Defence counsel said further that the defendant pleaded guilty, he would be entitled to one-third sentencing discount making the final sentence 12 months’ imprisonment. 

18.  In addition, he submitted that taking into consideration of sentence in the DCCC 346/2019 & DCCC 625/2019 (consolidated) and DCCC 365/2020 and the totality principle, he asked that 3 months of the sentence in the present case is to run consecutive to the sentence in the other two cases and the rest to run concurrent.

Discussion

19.  Before sentencing, this court has carefully considered mitigation submitted by the defence counsel.  It is noted that the present case does not involve a breach of trust.  2 victims are involved here.  The defendant devised a fraud to deceive the prosecution witnesses who were eager to get more business, in particular PW2 who just had his restaurant closed before the offence.

20.  A person is liable upon conviction upon indictment for this offence to imprisonment for 14 years.  There is no tariff in sentencing or sentencing guideline for this offence and the sentencing starting point in each case depends on the facts of the particular case.

1st charge

21.  The defendant is the sole perpetrator of this offence.  There is one victim and the total amount involved was $236,000. 

22.  Considering the circumstances of the case, this court considers the appropriate sentencing starting point is 18 months’ imprisonment.  Defendant has numerous previous convictions relating to dishonesty, accordingly the culpability in the commission of the present offence is aggravated.  The sentence starting point is enhanced by 3 months to 21 months’ imprisonment.

23.  Further, it is considered that the defendant committed the offence whilst he was on police bail.  This aggravates his culpability and accordingly the sentencing starting point is enhanced by 3 months’ to 24 months’ imprisonment. 

24.  The court finds that the most valid mitigating factor is that of his guilty plea, of which he is entitled to a full one-third sentencing discount. Accordingly, for this offence, the defendant is sentenced to 16 months’ imprisonment.

2nd charge

25.  The sum involved in this case totalled $25,264.  2 victims are involved.  The modus operandi of the defendant under this charge is similar to that in the 1st charge.  The offence was committed immediately following the commission of the first offence.  The appropriate sentencing starting point here is 6 months’ imprisonment.  Again, the same is aggravated by the two aggravating factors, each by 2 months’ imprisonment, bringing the sentencing starting point to 10 months’ imprisonment. 

26.  Again, the defendant is entitled to a full one-third sentencing discount by reason of his guilty plea and is sentenced to 6 months and 20 days’ imprisonment.

Overall sentence

27.  Now turning to the totality principle.  The court considers that the just and proportionate sentence for the defendant after plea is 16 months’ imprisonment.  Accordingly, the court orders that the sentence for the 2nd charge is to run wholly concurrent to the sentence in the 1st charge. 

28.  No doubt, commission of the 2 offences in this case adds to the culpability of the defendant in the other 2 court cases for which the defendant was sentenced for fraud and other charges. 

29.  Considering the totality principle and the overall criminality of the defendant in these 3 cases, ie the present case, DCCC 346/2019 & DCCC 625/2019 (consolidated) and DCCC 365/2020, this court orders that 9 months’ imprisonment of the sentence in the present case shall run consecutive to the sentence in the other two cases, the rest to run concurrent.

30.  The total sentence therefore for the defendant in the 3 cases would be a total of 82 months and 148 days’ imprisonment.

31.  This court is fully aware that the total sentence passed on the defendant on the 3 separate occasions is of substantial length, but having regard to the very frequent, extremely deceitful conduct of the defendant over the long period of time and that he practised fraud on vast number of victims, mostly victims preyed at random by the defendant on the internet, considering the impact to the society and the different modus adopted by the defendant in these fraudulent practices, the defendant showed disregard for the law in repeatedly committing offences whilst still on bail, his aggravated culpability by reason of his very poor past record as a persistent offender in dishonesty offences, the court finds that the total sentence is just and proportionate to the criminality of the defendant.