HKSAR v. LAU KWAN YIU VICKY

 DCCC718/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 718 OF 2009

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Reasons for Sentence

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1.  The defendant, Mr Lau Kwan-yiu, Vicky, pleaded guilty before me to 14 charges of fraud, contrary to Section 16A of the Theft Ordinance, Cap. 210. 

2.  The charges are similarly worded.  The defendant was alleged that during the period as particularised in the charges in Hong Kong, by deceit, namely by falsely representing to the victim concerned;

a)  That the defendant was a serving staff of the Prime Credit Limited,

b)  He had to meet a quota in work of securing a sufficient number of loan applications from clients to the said Prime Credit Limited,

c)  He needed help from the said victim to apply for loans from finance companies and he could transfer the successful loans obtained by the said victim to the said Prime Credit Limited; and

d)  He would settle repayment for all the loans obtained by the said victim with the finance companies.

And, with intent to defraud induced the victim to commit an act or series of acts, namely to apply for cash loans from finance companies which resulted in benefit to the defendant himself, or prejudice or substantial risk of prejudice to the victim.

3.  Gollonda Development (HK) Company Limited, (GDCL), was engaged in the business of promoting various credit and mortgage facilities of the Prime Credit Limited, referred to as the Company.  On 17 July 2006, the defendant joined GDCL as a customer officer.  The defendant was responsible for promoting the business of the company and, in particular, the personal loan program of the company to prospective clients.

4.  The defendant was remunerated with a monthly basic salary and commission, which were commensurate with the number of clients that the defendant could successfully refer to the company.  On 31 August 2006 the defendant was dismissed by GDCL.  GDCL did not set any quotas such as the number of successful clients for their customer officers to meet.  Moreover, the customer officers in GDCL were not required to handle cash from the customers. 

5.  Ms Yeung Ting-yan, Tiffany, PW12, the victim of charge 12, was introduced by her friend to the defendant on 21 March 2007.  PW12 was told the defendant was working in the company as a consultant and he had to meet a quota in work by securing sufficient number of loan applications from clients to his company.  The defendant asked PW12 to help him to meet the quota as follows. 

a)  PW12 would apply for cash loans from other finance companies;

b)  Once the cash loans were approved, PW12 would pass the monies and relevant loan documents to the defendant.

c)  The defendant would arrange to transfer the loans to his company and he would arrange to repay the loan and the interest for PW12 so that she would not be responsible for any repayment or suffer any loss.

d)  PW12 would also be awarded the sum of $3,000 by the defendant as a token of his appreciation of her assistance to him. 

PW12 believed the defendant and in the result she made a total of four applications from finance companies for cash loans in the sum of about $110,000 between 21 March 2007 and 20 May 2007.

6.  PW12 passed the monies obtained as well as the loan documents to the defendant.  Later PW12 checked with the finance companies and discovered that her loans had not been transferred to the company and she remained liable to repay the loans with interest.  PW12 then reported the matter to the police.  The 12th charge. 

7.  Police inquiries revealed that the defendant had used similar pretext to deceive 13 other persons and he then received from them the monies they obtained from the successful cash loan applications from the finance companies.  In short, the position of each of the 13 persons is as follows:

a)  The 1st charge took place between October 2006 and June 2007.  The victim Cheung Wai-chun made seven loan applications to finance companies and he handed a total of about $64,200 to the defendant.

b)  The 2nd charge took place between 1 November 2006 and 28 May 2007.  The victim, Wong Ho-yin made four loan applications to finance companies and handed a total of about $77,000 to the defendant. 

c)  The 3rd charge took place between 10 March 2007 and 10 May 2007.  The victim, Ms Wong Chi-kwan made four loan applications to finance companies and handed a total of about $110,000 to the defendant.

d)  The 4th charge took place between 23 November 2005 and 24 March 2007.  Fong Siu-fai, the victim, made four loan applications to finance companies and he handed a total of about $60,000 to the defendant.

e)  The 5th charge took place between 1 December 2006 and 28 December 2006.  Yip Chi-hung, the victim made three loan applications to finance companies and handed a total of about $64,000 to the defendant.

f)  The 6th charge took place between 12 January 2007 and 31 May 2007.  Fan Ka-yin, the victim, made four loan applications to finance companies handed a total of about $95,000 to the defendant.

g)  The 7th charge took place between 5 February 2007 and 28 March 2007.  The victim, Wong Chi-tat, made two loan applications and handed about $39,000 to the defendant.

h)  The 8th charge took place between 15 February 2007 and 21 February 2007.  Ms Yeung Ho-kwan, the victim, made two loan applications to finance companies and handed a total of about $69,000 to the defendant.

i)  The 9th charge took place between 8 February 2007 and 9 February 2007.  The victim, Ho Ka-lok, made two loan applications to finance companies and handed a total of about $27,000 to the defendant.

j)  The 10th charge took place between 15 May 2007 and 7 June 2007.  Ma Tsz-wun, Walter, made two loan applications to finance companies and handed a total of about $29,000 to the defendant.

k)  The 11th charge took place between 3 March 2007 and May 2007.  The victim, Chan Tat-chi, made four loan application to finance companies and handed a total of about $38,000 to the defendant.

l) The 13th charge took place between 10 April 2007 and 26 April 2007.  Leung Tsz-hin, the victim, made three loan applications to finance companies and handed a total of about $84,000 to the defendant.

m) The 14th charge took place between 27 April and 27 May 2007, Ng Wai-lam, the victim, made three loan applications to finance companies and handed a total of about $33,000 to the defendant. 

8.  On 23 January 2008, the defendant was arrested.  Under verbal caution the defendant said he had received monies from the witnesses because he had been declared bankrupt. On 24 January 2008, the defendant was interviewed by a DPC at Kwun Tong Police Station and the interview was video recorded.  Under caution, in connection with this case, the defendant admitted inter alia the following.  He had been declared bankrupt in 2003.  He had worked in Prime Credit Limited for a short period and after he quit the job he still kept the staff car of the company.  He had lied to the aforementioned 14 victims by telling them he needed to meet a work quota in the company and he requested them to apply for cash loans from finance companies.  After he had received the monies from the victims, he repaid the loans for a few instalments in order that the victims would not have discovered the scam until a later time.

9.  The defendant has a clear record.  The antecedent statement of the defendant shows that he is now aged 32.  He received education up to Form 5.  He is single and he lives with his family members at a public housing unit in Tuen Mun. 

10.  In mitigation Mr Mui tells me that in 2006 the defendant operated a fashion boutique with his ex-girlfriend.  They failed in the business and they suffered a huge loss of about $1 million.  Mr Mui submits it was against this background that the defendant committed the offences.  Mr Mui submitted a letter written by the defendant’s mother.  The defendant’s mother shows her concern about the defendant and gives her full support to the defendant. 

11.  Mr Mui draws my attention to the case of Cheung Mee Kiu.  Mr Mui submits that the present case was not a case of breach of trust in that the victims, apart from PW12, were all strangers to the defendant.  The defendant was not an employee of Prime Credit Limited nor was he employed by GDCL at the time of the offences.

12.  Mr Mui submitted if the court was to follow to tariff as set down in Cheung Mee Kiu, the court should either look at the offence separately and independently and set an appropriate starting point for each offence.  Or the court can add up the total figures for the offences involved which came up to $899,200.  Mr Mui submits that all the offences were committed during the period between November 2006 and June 2007.  The defendant pleaded guilty to all the offences at the earliest opportunity and he has a clear record.

13.  In sentencing the defendant I have borne in mind the nature of the offences; the facts as admitted by the defendant; the antecedent of the defendant and all the matters urged on the defendant’s behalf by Mr Mui.  I have also read the letter written by the defendant’s mother, Madam Hui. 

14.  I agree with Mr Mui that the present case is not one of breach of trust in that the defendant was not an employee of Prime Credit Limited nor was he employed by GDCL at the time he committed the offences.  The victims trusted and believed what the defendant said but nevertheless the defendant was not in a position of trust with the victims.  Nevertheless, tariffs as set down by the Court of Appeal in Cheung Mee Kiu provide a good starting point and good reference. 

15.  Although the defendant did not commit the offences in the course of his employment, he was no longer an employee of GDCL when he committed the offences, nevertheless the offences were somehow related to the defendant’s previous employment with GDCL. 

16.  A term of immediate custodial sentence is the only appropriate sentence in the present case.  For Charge 1 a starting point of 9 months’ imprisonment is appropriate.  The defendant is entitled to one-third reduction for his guilty plea and clear record.  For Charge 1, I sentence the defendant to 6 months’ imprisonment. 

17.  Charge 2, a starting point of 9 months’ imprisonment is appropriate.  I shall allow the defendant one-third reduction for his guilty plea and clear record.  For Charge 2, I sentence the defendant to 6 months’ imprisonment.

18.  Charge 3, a starting point of 12 months’ imprisonment is appropriate.  I shall allow the defendant one-third reduction for his guilty plea and clear record.  I sentence the defendant to 8 months’ imprisonment.

19.  Charge 4, I take a starting point of 9 months’ imprisonment.  I shall allow the defendant one-third reduction for his guilty plea and clear record.  I sentence the defendant to 6 months’ imprisonment.

20.  Charge 5, I take a starting point of 9 months’ imprisonment.  I shall allow the defendant one-third reduction for his guilty plea and clear record.  I sentence the defendant to 6 months’ imprisonment.

21.  Charge 6, I take a starting point of 12 months’ imprisonment.  I shall allow the defendant one-third reduction for his guilty plea and clear record.  I sentence the defendant to 8 months’ imprisonment.

22.  Charge 7, I take a starting point of 6 months’ imprisonment.  I shall allow the defendant one-third reduction for his guilty plea and clear record.  I sentence the defendant to 4 months’ imprisonment.

23.  Charge 8, I take a starting point of 9 months’ imprisonment.  I shall allow the defendant one-third reduction for his guilty plea and clear record.  I sentence the defendant to 6 months’ imprisonment.

24.  Charge 9, I take a starting point of 6 months’ imprisonment.  I shall allow the defendant one-third reduction for his guilty plea and clear record.  I sentence the defendant to 4 months’ imprisonment.

25.  Charge 10, I take a starting point of 6 months’ imprisonment.  I shall allow the defendant one-third reduction for his guilty plea and clear record.  I sentence the defendant to 4 months’ imprisonment.

26.  Charge 11, I take a starting point of 6 months’ imprisonment.  I shall allow the defendant one-third reduction for his guilty plea and clear record.  I sentence the defendant to 4 months’ imprisonment.

27.  Charge 12, I take a starting point of 12 months’ imprisonment.  The defendant is given one-third reduction for his guilty plea and clear record.  I sentence the defendant to 8 months’ imprisonment.

28.  Charge 13, I take a starting point of 9 months’ imprisonment.  The defendant is entitled to one-third reduction for his guilty plea and clear record.  I sentence the defendant to 6 months’ imprisonment.

29.  Charge 14, I take a starting point of 6 months’ imprisonment.  The defendant is entitled to one-third reduction for his guilty plea and clear record.  I sentence the defendant to 4 months’ imprisonment.

30.  I bear in mind the totality principle, bearing in mind the number of charges, the period of time over which the defendant committed the 14 offences and bearing in mind the number of victims involved and also the total amount involved for the 14 charges.  In my judgment a total sentence of 24 months’ imprisonment would adequately reflect the overall criminality of all the charges.

31.  To achieve this result, I order the sentences for Charges 1 to 5 to run concurrently.  I also order the sentences for Charge 6 to Charge 10 to run concurrently but the sentences for Charge 6 to 10 shall run consecutively to the sentences for Charge 1 to Charge 5.  I order the sentences for Charge 11 to Charge 14 shall run concurrently but consecutively to the sentences for Charge 1 to Charge 10 making a total of 24 months.