HKSAR v. SANDUJA MOHIT

DCCC 953/2018

[2019] HKDC 857

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 953 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant faced 2 charges of “Fraud”. His trial was fixed for 3 days commencing on 7 May 2019.

2.  On the first day of trial, the defendant pleaded guilty to Charge 2.  The prosecution offered no evidence against him in respect of Charge 1, which was dismissed accordingly.

Facts of the case

3.  Mr Gohil was the owner of Mobile Planet (HK) Ltd, a Hong Kong based electronic devices trading business which engaged in purchasing electronics from the USA and selling them in Hong Kong.

4.  In mid-August 2014, the defendant, trading under the name of Big Ocean Trading Ltd, purchased HK$40,000 worth of SD cards from Mobile Planet.  Money was paid in cash within 10 days to Mr Gohil as promised.

5.  On 20 January 2015, the defendant purchased HK$205,562 worth of USB memory sticks and SD cards from Mobile Planet again.  He collected the goods, and promised to pay 50% of the purchase price within 3 days, with the remaining 50% to be settled within 10 days.

6.  On 22 January 2015, the defendant indicated to Mr Gohil that he did not have the promised 50%.  He paid HK$18,897 in cash and promised to settle the entire outstanding balance, HK$186,665, within 10 days.  Mr Gohil trusted the defendant.  10 days later, when the balance had not yet been settled, Mr Gohil called the defendant, who promised to pay as soon as possible.

7.  On 23 March 2015, upon being chased for payment by Mr Gohil, the defendant wrote 4 cheques (all dated 23 March 2015) totalling HK$186,665 in favour of Mobile Planet to be drawn on the defendant’s personal HSBC account.  He instructed Mr Gohil to cash one of those cheques per week, starting at the end of that month.

8.  On 2 April 2015, Mr Gohil went to deposit the first cheque (797064) but it was subsequently dishonoured.  When asked, the defendant said he would follow up.  Mr Gohil subsequently tried to deposit the remaining 3 cheques (797065 on 17 April; 797067 and 797069 on 4 May) but all of them were dishonoured as well.  By then, the defendant had become out of reach and the office of Big Ocean had been vacated.

9.  Immigration records show that the defendant departed from Hong Kong on 5 April 2015 and did not return until 7 September 2018, when he was arrested at the airport.

10.  In a subsequent video-recorded interview, the defendant admitted his business dealings with Mr Gohil, and indicated that in 2015 he purchased HK$150,000 worth of goods from Mobile Planet.  As the goods were stolen in India, he could not repay the full amount to Mr Gohil immediately.  However, the defendant claimed that he did pay 50% of the price, and intended to resolve this monetary dispute on his return to Hong Kong.  He confirmed that the cheques were signed by him, but he indicated that he could not be sure if his HSBC bank accounts had enough money at the time.

11.  The defendant’s personal accounts with HSBC were opened in February 2012, and he was the sole signatory of those accounts.  However, records show that they were already in overdraft since February 2015, and remained so when the defendant wrote the 4 cheques to Mr Gohil.

Mitigation

12.  The defendant, aged 26, single, is a businessman trading in electronic components.  He had a clear record in Hong Kong.

13.  In mitigation, it is submitted that the defendant has now realized his folly in not ensuring that adequate sums were available to cover his cheques, and is remorseful for his acts.  Mr Hunter stressed that the value involved in this case was not huge, and there are no aggravating factors existing in this case.

14.  Mr Hunter also indicated the defendant’s willingness to make restitution.  As a result, the case was further adjourned so that arrangements could be made.  Today I was informed that full restitution has already been made to the victim.

Sentence

15.  Fraud is a serious offence which carries a maximum term of imprisonment of 14 years.

16.  The Court of Appeal in HKSAR v Ng Tik Ki Chaneki[1] noted that frauds take on an almost infinite variety of shapes, seeking to inflict all manner of harm, and often involve the exploitation of the victim’s trust.  For such reasons, in respect of crimes of fraud, there is no sentencing tariff as such.

17.  At the same time, the Court of Appeal confirmed that in respect of sentencing in frauds involving breach of trust, the guidelines are those referred to in HKSAR v Cheung Mee Kiu[2] and as adjusted in HKSAR v Ng Kwok Wing[3].  According to the guidelines, when the value involved is HK$250,000 or below, the range of sentence should be 2 years or less.

18.  Although this is not a breach of trust situation in the strictest sense, nonetheless I am of the opinion that the defendant’s acts involve to a certain extent, as described by the Court of Appeal, the exploitation of the victim’s trust.

19.  It was only by trusting the defendant, likely because of the previous uneventful dealing with him and the defendant’s repeated empty promises, that Mr Gohil accepted the 4 cheques.  However, when the defendant wrote the 4 cheques in question in April 2015, he must have known that his accounts were in overdraft, as they had been so for 2 months since February.  In other words, he must have been aware that the 4 cheques would be dishonoured. Moreover, he soon became out of reach, and was later found out to have in fact left Hong Kong.  As such, the defendant has clearly abused and exploited the trust placed upon him by Mr Gohil.

20.  Under the circumstances, although the guidelines in Cheung Mee Kiu may not be strictly applicable, they are nonetheless a helpful reference in assessing the culpability of the defendant in this case and accordingly in arriving at an appropriate starting point.

21.  Taking into account the above, together with the value of the dishonoured cheques involved, the circumstances in which the fraud was committed, the fact that the defendant has never been in trouble before, and all that was said in mitigation on behalf of the defendant, I consider the proper starting point in this case to be 20 months’ imprisonment.

22.  Restitution, particularly when coupled with a plea of guilty, can amount to a mitigating factor of real weight.  The defendant has, albeit late, now made full restitution to the victim, the receipt of which has been confirmed.  Taking this into account, together with the fact that the defendant pleaded guilty on the first day of trial, I consider the appropriate discount to be 50%.  The sentence is thus reduced to 10 months’ imprisonment.

23.  There being no other mitigating factors, the defendant is sentenced to 10 months’ imprisonment.