HKSAR v. ACHHADA DILIP G

DCCC 85/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 85 OF 2012

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REASONS FOR SENTENCE

The defendant is charged with 1 offence of "Fraud" (Charge 1) and 1 offence of "Money Laundering" (Charge 2). He pleaded not guilty to both charges and was convicted of Charges 1 and 2 after trial.

2.  The defendant pretended to be a salesman of a company owned by PW9.  He purported to sell 70,200 pieces of Samsung SD cards to JS Micro at a bargain price of US$195,156.  JS Micro agreed to buy from the defendant and deposited the full sum of purchase price into PW9's personal bank account.  The defendant, of course, had no goods to deliver to JS Micro.

3.  Simultaneously, the defendant communicated with PW5 that he was about to complete a business deal and requested PW5 to help him exchange a sum of US$190,000 into Hong Kong currency.  PW5 thus made the necessary arrangements for the defendant.

4.  As soon as JS Micro had effected payment of the purchase price, the defendant caused PW9 to transfer a sum of US$190,000 into PW5's company bank account.  Upon receiving the said sum, PW5 arranged for the defendant to collect HK$1,010,230 cash from PW8 and US$60,000 cash from another currency exchange shop.

5.  After collecting the 2 batches of cash, the defendant immediately went to Macau.  According to his passport, he arrived at India on the following day.  He returned to Hong Kong 3 months later and was stopped at the airport.

Mitigation & Sentence

6.  The defendant is now 34.  He has 1 conviction record in August 2007 involving 3 trademark offences.  He was sentenced to a total term of 4 months' imprisonment.

7.  According to his own evidence, the defendant was born in India.  He first came to Hong Kong in 2000.  He became a torture claimant in November 2007 and is allowed to remain in Hong Kong on the strength of his recognizance paper.

8.  The defendant married a local Chinese woman in April 2010.  They have 2 young children (son 2 years old and daughter, 9 months).  At present, his wife runs her own trading business earning $15,000 to $20,000 per month.  Mr. Mackay informed me that his wife is able to maintain the family financially.

9.  In the course of mitigation, Mr. Mackay submitted that JS Micro was perhaps too anxious to get the goods at a bargain price, and that this case is perhaps not the worst of its kind.  Mr. Mackay stressed that there is no breach of trust involved.  The fraud took place in the course of an apparently normal commercial transaction.  Finally, Mr. Mackay asked for concurrent sentences since Charge 2 is part and parcel to Charge 1.

10.  The fraud orchestrated by the defendant requires certain degree of advance planning.  Evidence shows that he began his scam by approaching the Shenzhen branch of JS Micro.  False documents such as invoices and a business card were used.  If PW9 was not a perpetrator of the fraud, the defendant had certainly used and taken advantage of her.  The defendant also employed calculated manoeuvres to collect the money and to flee the territory.

11.  The 2 key determining factors for his sentences are the sums of money involved and the fraudulent practice adopted by the defendant.  Immediate custodial sentences are inevitable.  In terms of the length of the prison term, for Charge 1, I accept that there is no breach of trust (in the Barrick sense).  Hence, I adopt a starting point of 2.5 years' imprisonment.   For Charge 2, I adopt of a starting point of 2 years' imprisonment.  As the defendant was convicted of both charges after trial, he would not be entitled to the one-third discount for pleading guilty.  I do not see any mitigating factors which warrant any reduction of his sentence either.

12.  For Charges 1 and 2, I sentence the defendant to 2.5 years' and 2 years' imprisonment respectively.  I accept that both charges arise from the same scam and Charge 2 is part and parcel to Charge 1.  On this basis, I order the sentences for both charges to run concurrently.  In other words, the total prison term is 2.5 years.