HKSAR v. SAILESH LACHU HIRANANDANI

 DCCC264/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 264 OF 2009

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Reasons for Sentence

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1.  Defendant has been convicted of five fraud charges, statutory fraud charges, contrary to section 16A of the Theft Ordinance, Cap. 210. Defendant was convicted after trial.

2.  I will not repeat the facts of this case. I went into great detail in my reasons for verdict. As credibility of witnesses went to the crux of the case, I gave a very full account of the evidence presented and the evidence I have relied on to find the defendant guilty as charged.

3.  PW1 was the victim and suffered a loss of $2,056,110.11 over a period of time. That is the total amount of loss involved in these five counts. PW1’s actual loss is higher, but as some moneys were paid in circumstances where jurisdictional issues arose, it meant that those amounts were not subject to charges in the Hong Kong courts. There have been two repayments by the defendant to PW1 prior to trial, which I will take into account. The loss was then reduced to what has been agreed to a sum of $1,843,110.66.

4.  After conclusion of the trial, I believed PW1 to 4 entirely and I rejected the defendant’s case. I was sure the defendant acted fraudulently, resulting in PW1 suffering this loss.

5.  I have heard full mitigation. The defendant had a clear record. I have seen letters from the defendant’s family, his wife and son, from the defendant’s friends, colleagues, business partners and acquaintances as well as employees. The defendant is a businessman with diverse business interests.

6.  It can be seen that he has worked hard, but perhaps due to the economic downturn, I have been told he has struggled recently. I suspect this is what has led to the commission of these offences. I suspect the defendant found it easy to extract the money from PW1, got greedy and spiralled downwards. Many of the letters I have seen describe the defendant as a generous man, kind, a friend to many and a Samaritan to some. I will take that into account.

7.  I accept and consider his family will suffer financially. His employees are now without employment yet still write letters of support, urging the court to be as lenient as possible. And his business he has built up will fall by the wayside now.

8.  The defendant is not a man of good health. I have seen a medical assessment dated September 2008, which describes the defendant as suffering from diabetes, hypertension, anaemia and, at that stage, in need of cardiological assessment. I have been presented with today a list of medications that he relies on. Since his detention in Lai Chi Kok Reception Centre, he has stayed in the Centre hospital for treatment for diabetes and hypertension. At present, his general health condition remains satisfactory. His health problems are presently not life threatening nor is he in need of urgent treatment. However, I will consider his health to be poor.

9.  There has been full restitution in the adjournment period. This is, as I indicated on a previous occasion, a very strong mitigating factor. It will allow me to consider a discount to reflect this mitigation. PW1 has now fully been repaid. Restitution should be encouraged and reflected in sentence.

10.  I have considered, as submitted by the prosecution, whether or not this is a breach of trust situation. I have decided it is not a breach of trust scenario. It is a straightforward unsophisticated fraud I think the defendant stumbled into. It was not complicated, syndicated or organised crime. Having decided this is not a breach of trust scenario, I will not follow the breach of trust guidelines set down by the Hong Kong Court of Appeal.

11.  There are no guidelines for these scenarios. Each case will be decided on its own facts. I do find, however, a custodial sentence appropriate. It is a serious matter, which deserves a serious approach to sentence. To consider a suspended sentence as urged is, with respect, out of the question.

12.  I have taken into account all the facts of the case, the multiple charges, the mitigation and the defendant’s clear record. I accept that these five offences took place over a period of time but they have arisen out of the same transaction, the same promise. I will take a global approach and make all five charges concurrent.

13.  I do repeat that what I have taken into account, besides the facts of the case, the sum of money involved and the multiple charges, is the defendant’s health, his previous clear record and the mitigation put forward, which is substantial. Where these last three factors are concerned, no one single factor would allow for a more lenient approach. But together I will consider them all to reach an appropriate starting point that justifies or justly reflects their values. Accordingly, and after careful consideration, for each charge, I will take a starting point of 2 years and 8 months’ imprisonment.

14.  Having considered full restitution, a significant mitigating factor, I will consider a further discount on each charge of 8 months appropriate. The defendant, for Charges 1 to 5, is sentenced to 2 years’ imprisonment for each charge, all five charges to be served concurrently. That will impose a total sentence of 2 years’ imprisonment.