COURT: The defendant pleaded guilty to two charges of fraud, contrary to section 16A(1) of the Theft Ordinance, Chapter 210.
At all material times, he was an account manager of the Dah Sing Bank, and he was responsible to provide financial advice and service to the first victim, I will call her PW1, and the second victim, I will call him PW2.
He falsely represented to PW1 and PW2 that there was a genuine high interest rate target deposit programme in the Dah Sing Bank, and with the intent to defraud them, he induced PW1 to part with $9.45 million between the period from 24 August 2005 to 10 August 2016. That is the subject of the 1st charge. And he induced PW2 and also his mother to part with a total of $7.65 million between 2 January 2009 and 24 June 2016. So the total amount of money that was deceived was $17.1 million.
However, because of the repayment of interest or a part of the principal during the period of the fraud, the actual loss suffered by PW1 is $5.9 million and the actual loss suffered by PW2 is $5.3 million. That is a total of $11.2 million.
The defendant was arrested on 3 October 2016. In a subsequent video-recorded interview he made confession to deceiving PW1, but no confession was made in respect of PW2. He said in the video-recorded interview that the money was used to pay off his own loans, or to transfer to the betting account in the Jockey Club, or to transfer to his investment account. He had lost all the stolen monies due to his investment failure in futures contracts. In June 2016, because of the internal investigations by the bank and the fact that he had no more money to give to PW1, so he contacted PW1 to confess his guilt and tried to negotiate with PW1 about the return of the money.
The defendant is now 50 years of age. He is a university graduate with a master degree. He worked in Dah Sing Bank since year 1999 and was eventually promoted to managerial position. He started to commit all those frauds on the customers of the bank before he was promoted to the managerial position. He is divorced.
The cases were discovered in the year of 2016 and since then he was dismissed by the bank. Then he worked as a private car driver for one or two years, and afterwards he started to work in the field of mobile app development. Now he is a business development director of a mobile app development company.
During her mitigation, defence counsel Ms Priscilia Lam informed me that the defendant committed the offences because of his gambling and spending habits and his inability to manage his own finances, as a result he incurred huge losses in the stock market.
I do bear in mind that in this case the fraud was committed over a long period of time, and clearly it has an element of premeditation and breach of trust.
In mitigation, counsel asked me to take into account the fact that he was first arrested by the police in 2016. However he was released in 2017 and rearrested in 2023, about seven years later, so there was a period of delay in the bringing of this prosecution. Over this period of time he had already turned a new leaf and started a new career.
On the other hand, counsel asked me to take into account his good character. My attention was drawn to two incidents of donations made by him. The first ws the donation to Save the Children. During the period from December 2014 to March 2022, it is a period of seven years and four months, he made a monthly donation of $300 to Save the Children.
In respect of the organisation of World Vision, in the period between December 2003 and March 2018, he made a donation of $37,200 in total to sponsor a child.
Counsel also urged me to take into account the fact that the money had been fully repaid to PW1 and PW2. However, upon enquiry with the prosecution, I was told and I think counsel for the defence also confirmed, that the full restitution was made by the Dah Sing Bank to the two victims, not by the defendant himself. And the defendant had not even repaid one single cent to the Dah Sing Bank for that matter. So, as far as restitution is concerned, I do not accept that there was any restitution of the amount in full or in part on his part.
However, I do accept that before the frauds were discovered, he had repaid some money to the victims in the form of interest or principal. I think that was operated as an ongoing part of the fraudulent scheme because he got to pay the interest earned or supposed to be earned to the victims anyway. But in any event, I do bear in mind that the actual amount of money lost was not that mentioned in the charges. That is, as far as the so-called restitution is concerned, its relevance.
In respect of the so-called good character, other than the donation of a small amount of money to two organisations, actually I do not see anything in particular about his personal circumstances that would warrant any useful or meaningful discount, bearing in mind the period of the fraud and the huge amounts of money involved.
Having taken into account all the circumstances of the 1st charge and the guideline case of HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 which stated that for fraud involving breach of trust involving $3 million to $15 million, the sentencing range should be 5 to 10 years’ imprisonment starting point after trial.
Bearing in mind all the circumstances in respect of the 1st count which occurred over a period of about 11 years from 2005 to 2016, incurring an actual loss of $5.9 million to the victim, I consider that the appropriate starting point should be 7 years and 9 months’ imprisonment. That is the starting point after trial for the 1st count.
Now I shall come to the mitigating factor. In respect of the delay of this matter, I have obtained detailed information from the prosecution. I consider that in the delay of 7 years, at least about 4 to 5 years of that period cannot be considered to be reasonable and indeed, upon his arrest and before he was released in 2017, the prosecution should have sufficient evidence to proceed with the case.
I do accept that in this kind of cases there are always a number of documents, especially bank documents or financial documents, to be considered by the investigating authority. But I understand that even they had spent 4 years in examining all those bank documents, indeed there was nothing new as far as evidence is concerned, and there was still a period of another one to two years’ delay for the consideration of the charges and the arrest action which apparently got no explanation as he could be located quite easily by the subsequent team of investigation. I must point out that the delay in the investigation was not caused by the present investigating team.
Having considered this matter and also the factors that one should bear in mind about delay, the seven factors that are stated in the case of Scook v R (2008) 185 A Crim R 164, I consider that the defendant is entitled to some discount for the delay because part of the delay was not reasonable as I have mentioned. Also I accept that over these years of delay, he has made progress towards a new career and rehabilitated to a certain extent. So having taken that into account, I consider that I should give him a further discount for that matter in addition to the full one-third discount.
From the starting point of 7 years and 9 months’ imprisonment, first of all I will give him a one-third discount because of his plea of guilty. That would reduce the sentence to 5 years and 2 months’ imprisonment. A further 6 months is provided to him for the delay, and that would reduce the sentence to 4 years and 8 months’ imprisonment. Other than that I do not see any other meaningful mitigating factor.
So, in respect of the 1st charge, the sentence I will impose is one of 4 years and 8 months’ imprisonment.
In respect of the 2nd charge, bearing in mind the period of the fraud and the total amount of loss actually suffered by the victim, I consider the appropriate starting point should be 6 years and 11 months’ imprisonment. And after the one-third discount for the plea of guilty, it is reduced to 4 years and 7 months’ imprisonment.
Again, I will give him a further 6 months’ discount because of the delay, and that will reduce the sentence to the ultimate sentence of 4 years and 1 month’s imprisonment.
Bearing in mind the principle of totality and the overall criminality of the defendant, I will order that 6 months of the sentence in Charge 2 to be served consecutively to the sentence in Charge 1.
So the total sentence for both charges would be one of 5 years and 2 months’ imprisonment.