HKSAR v. LI KING YIN

DCCC1182/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1182 OF 2011

------------------

------------------

------------------

Reasons for Sentence

------------------

1.  The defendant pleaded guilty to three charges of fraud.

2.  He is represented by a responsible and able lawyer.  He pleaded guilty to all three charges. 

3.  He admitted that, as a matter of fact, sometime ago he was told from the Internet that he had a fortune: an inheritance would be granted to him but just that some Custom clearance fees and lawyer’s fees were needed from him for him to get the fortune.  He believed in the story. 

4.  He doubted that the inheritance was wrong.  He knew that it might well be a mistake but still he gave it a try.  In pursuance to the request, he paid about CAD200,000 but still in vain.  The fortune did not go into his pocket.  Anyway, he was not giving up.  He was thinking that the fortune was still alive, and because he was running out of money, he looked for others for help.

5.  He knew that if he told the other people the same story, it would be hard to believe, so he added up the story to booster other people’s confidentiality so that he could get the money from them.  This was where the fraud came in.

6.  He knew some friends and over a period of about 2 months successfully lied to them that he had some investment in oil businesses in Africa.  The return of the investment was there in Hong Kong already but it was kept or detained by the Customs and Excise.  To clear the money passage, he will have to find some money to pay the administration fees and the lawyers’ fees.  These were what he told the friends.

7.  The three victims believed in him and in stages gave him money.  The first victim gave him a total of $33,600, the second victim some $468,000, and the last victim $10,000.  Those moneys were in fact remitted to some London account, purportedly to some lawyers in the first scam which the defendant still believed was genuine.  

8.  The above version is not challenged by the prosecution and I can only accept them as facts as basis for the sentence. 

9.  Both lawyers have very helpfully produced to me some authorities, and the most relevant one is the Pike case, Pike James Edward, a Court of Appeal case, CACC486/2006.  The sentence in that case was challenged on appeal but was upheld.  The facts were in a way similar to the present case and therefore the authority is very helpful to me. 

10.  In the Pike case, the fraud was practised on two cousins by a relative who was a professional investment consultant by occupation.  The fraud practised was over a time span of about 2 years.  The cousins, in fact the couple, was told that the money would go to buy some securities, bonds, stocks etc, and over that period a total of equivalent HK$400,000 some were paid to Mr Pike.

11.  At the first instance, the trial judge took the starting point of 3 years, ie, 36 months.  Guilty plea, therefore 24 months, and because he said the defendant was of previous good character and there was some charity work by him, the Court order generous discount of 4 months further, and effectively the defendant was sentenced in that case to 20 months’ imprisonment.  The case was tested on appeal, both to conviction and sentence.  That conviction was upheld and likewise for sentence.

12.  I consider the defendant’s mitigation.  The defendant is 30 years old. He was brought up in Hong Kong, but after the Form 3 education he emigrated to Canada and had college education finished there, and had since been living there.  When he was a victim of the scam, he was in Canada and that was why he lost some Canadian dollars.  And then, he came to Hong Kong, came to know the three victims in the case through the introduction of one another.  He is of clear record.

13.  For Charge No 1, this court adopts 21 months’ imprisonment as a starting point; guilty plea, therefore 14 months’ imprisonment.  Because of the defendant’s previous good character, he is given 2 more months discount, so effectively Charge No 1 is 12 months’ imprisonment.

14.  Charge No 2, this court adopts a starting point of 33 months’ imprisonment, that I have taken into account the money defrauded in Charge No 2 was almost the same as the Pike case.  I did not adopt the 36 months’ imprisonment because of the factors, as pointed out by the defence:

(a) the victims do not bear as close a relationship to the defendant as the Pike case. In Pike case, the defendant is professional and a cousin, here in this case, defendant was just friend; and

(b) the fraud practised there was much longer than the present case, that was 2 years and here is about 2 months; and

(c) the fact that the defendant was a victim in the scam at first, but still when he practised the fraud on the victims he was just as guilty, I say. He was deliberately risking other people’s money for his own benefit.

15.  After the guilty plea, 33 months will be down to 22, and I give him likewise 2 months’ discount for his previous good character, and therefore effectively, Charge No 2 is 20 months’ imprisonment.

16.  Charge No 3, 21 months to start, a guilty plea and therefore 14 months, and likewise, previous good character, 2 months for discount, 12 months effectively.

17.  I have to take a look at the totality of all the three charges’ sentences.  In fact, for Charge No 1 and No 3, the defrauded amount of money there did not add substantially to the already almost half a million dollars in Charge No 2, and for the fact that the defendant has a clear record, I again indue some sympathy to him, and I also note the fact that he was a victim of the first scam.

18.  As a result, I make all three sentences totally concurrent.  The defendant is sentenced to 20 months’ imprisonment in the whole case.