|
DCCC 944/2020
[2021] HKDC 542
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 944 OF 2020
________________________
________________________
| Before: |
H.H. Judge G. Lam |
| Present : |
Mr. Matthew Chong, counsel on fiat, for HKSAR. |
|
Mr. Victor Cheung instructed by M/s W.K. To & Co., assigned by the Director of Legal Aid, for the defendant. |
________________________
REASONS FOR SENTENCE
________________________
The defendant pleaded guilty to a charge of "Fraud". He used a forged cashier order to purchase a used private car. The purchase price was $1.4 million.
Summary of Facts
2. Mr. Dai was the registered owner of a Bentley private car with chassis number SCBFN63W7EC088133 ("the Car"). He engaged 3DS Motors Limited ("the Company") to sell the Car on consignment. Upon sale, the Company would pay Mr. Dai $1.1 million. The Company advertised the Car on the "28car.com" website for sale at the price of $1.49 million.
3. On 1 October 2019, Mr. Chin (PW1) of the Company received a WhatsApp message from 6941 0013 ("the Message Sender") claiming to be a Mr. Wong interested in buying the Car.
4. On 7 October 2019, Claiming to be the Message Sender's driver, the defendant met with PW1 to inspect the Car.
5. After negotiation, the Message Sender agreed to buy the Car at $1.4 million.
6. Around 2:00 p.m. on 11 October 2019, the defendant and PW1 met at the Transport Department Kowloon Licensing Office in Cheung Sha Wan to complete the paperwork.
7. The defendant gave PW1 a cashier order (No.585668) for the sum of $1.4 million purportedly issued by the Bank of Communications ("the Cashier Order"). PW1 gave the defendant the keys to the Car. The defendant was then registered as the new owner of the Car using his name in Chinese and English as well as his HKID card number. It was later discovered that the Cashier Order was forged.
8. The Police subsequently arrested the defendant. In his video recorded interview, the defendant admitted that he met a stranger (Male A) online. They then spoke on the phone and Male A offered him a way to earn quick money. Pursuant to Male A's instructions, the defendant went to inspect the Car and complete the deal. The defendant claimed that he received from another man (Male B) a bank statement bearing the defendant's name and an address unfamiliar to him; and an envelope containing the Cashier Order. The defendant completed the ownership transfer forms using the false address. When the transaction was completed, he met with Males A and B to hand over the Car and its keys. The defendant received $5,000 cash for what he did and has not seen the Car afterwards. He last contacted Male A on or about 15 October 2020. Male A "blocked" the defendant afterwards and could no longer be reached.
Mitigation & Sentence
9. The defendant is 38 and has a clear record. Defence counsel Mr. Cheung informed me that the defendant is married with 2 children (aged 10 and 8), both with some degree of learning disabilities. The defendant is the sole breadwinner of his family. He works as a bus captain earning about $24,000 per month.
10. In mitigation, Mr. Cheung submitted that the defendant was in substantial debt as a result of excessive spending. He committed the present offence owing to his greed and inducement by another. A bundle of mitigation documents was placed before me; their contents are duly noted.
11. This case does not involve the Barrick type of breach of trust. I nevertheless find the sentencing guidelines laid down in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 relevant. In my view, such guidelines are simply a yardstick. For cases which are not of the Barrick type, the court may still follow those guidelines or impose a sentence which is higher or lower than those guidelines, depending on the facts of each case.
12. The present case is not a cybercrime, which normally deceives victims of their money directly online. A forged cashier order was presented to PW1 in person in order to obtain the Car and its owner registration. The syndicate did not appear to target at elderly people or people with certain vulnerabilities. I do not consider the scam to be a sophisticated one either. The most crucial deceptive element was the Cashier Order.
13. The defendant claimed to be a foot soldier only. He alleged that Males A and B, if they existed, were the masterminds who orchestrated the scam. For the purpose of sentencing, I need not determine who played a lesser role. As revealed in the Summary of Facts, what each culprit did is clear. They might have played different roles, but they each contributed to the planning and/or execution of the scam and are equally culpable. There is no need to distinguish their roles or to apportion their culpability.
14. Based on the scam employed in the present case, I consider the seriousness of this case commensurate with the sentencing guidelines in Ng Kwok Wing. Hence, I will follow those guidelines.
15. Prosecuting counsel Mr. Chong confirmed that the Car is still missing; the Police do not know its whereabouts. In other words, Mr. Dai suffered loss in the sum of $1.1 million; whereas the Company was unable to collect its $300,000 consignment fee. On the other hand, for the purpose of the Transport Department's record, the defendant remains the registered owner of the Car, with all the legal obligations attached. According to Ng Kwok Wing, for $1 million, the starting point is 3 years' imprisonment. In the present case, for $1.4 million, I will adopt a starting point of 39 months' imprisonment. With the timely guilty plea, the sentence is reduced to 26 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 26 months' imprisonment.
|