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DCCC870/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 870 OF 2011
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| Before:
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Deputy District Judge Joseph To
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| Date:
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20 September 2011 at 3.32 pm
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| Present:
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Mr Lam Siu-ming, Sharman, SPP of the Department of Justice, for HKSAR
Mr Cheung Man-fai, Jeremy, instructed by Messrs Tang & Tang, assigned by the Director of Legal Aid, for the Defendant
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Reasons for Sentence
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1. The defendant enters a plea of guilty to four charges of ‘Fraud’, preferred against him under section 16A of the Theft Ordinance, Cap.210.
2. The facts to which the defendant agrees are as follows.
3. The defendant and Miss Lam used to be primary school-mates and they became lovers in 2002. In 2005, the defendant began working as a portfolio consultant at a finance company.
4. In August 2007, the defendant recommended an investment plan to Miss Lam’s mother, Madam Leung, saying that the plan would yield good returns. When Madam Leung expressed interest in the plan, the defendant falsified a ‘Certificate of Deposit’, presented it to Madam Leung, and said he had made payment in the sum of $175,000 on her behalf to activate the plan. He asked Madam Leung to make a deposit into his own bank account in that amount. Madam Leung acceded to his request.
5. On four subsequent occasions, the last of which took place in April 2009, the defendant showed Madam Leung various documents he forged, purportedly, as proof that he had made further deposits in the sums of $83,000, $65,000, $200,000, and $76,200 into the investment plan to enhance the yields for her. On each of these occasions, he asked Madam Leung to make corresponding deposits into his own bank account. In respect of this investment plan, the total sum Madam Leung paid the defendant amounted to $496,700 (Charge 1).
6. Still in August 2007, the defendant showed Madam Leung another false certificate and told her that he had paid $234,000 on her behalf to invest in another high-interest-bearing plan. On the defendant’s request, Madam Leung again made a deposit in that sum into his bank account (Charge 2).
7. In December 2007 and January 2009, using the same modus operandi, the defendant uttered to Madam Leung false documents and cheated her of $327,600 (Charge 3) and $100,000 (Charge 4), respectively.
8. The total amount of money Madam Leung paid the defendant was $1,158,300. To cover up, the defendant made seven deposits into Madam Leung’s account, amounting to $63,514.72, purportedly as profits of her investment plans.
9. In October 2010, Miss Lam mentioned to Madam Leung the poor financial situation of the defendant. Worried, Madam Leung confronted the defendant, who confessed that he had never made any investment on her behalf. The defendant promised to repay her, but disappeared after he made the first repayment instalment of $4,096 in January 2011. A report was made to the police.
10. The defendant was arrested when he returned to Hong Kong from the Mainland via Macau in June 2011.
11. The court finds the defendant guilty as charged. The defendant has had a clear record before his current conviction.
12. In mitigation, the defence puts forward the following matters for the court’s consideration. The defendant, who is 30 years’ old, has had a clear record prior to his current conviction. He is remorseful, which is reflected by his guilty pleas. Counsel for the defence urges this court to give him due credit for his clear record and guilty pleas.
13. Counsel submits that the defendant is the only child of the family. His parents have had high hope of him and love him dearly. They suggest in their clemency letter to the court that the defendant has committed these offences because of his inability to properly handle his first love affair. Counsel for the defence explains that the defendant has gone to university with Miss Lam, and has always regarded her as the future wife. But after their university studies, Miss Lam has acquired a somewhat expensive taste in terms of luxurious items and overseas trips, which the defendant could not afford; and hence the commission of this crime. It is submitted that part of the money has been spent jointly by the defendant and Miss Lam. Counsel stresses that the defendant has revealed this true reason for committing the offences as early as in his interview by the police.
14. The defendant and Miss Lam have split up. The defendant has now a fiancée who is living on the Mainland and who eagerly awaits the defendant’s return after his imprisonment.
15. A bundle of clemency letters has been placed before the court, including one written by the defendant himself. In that letter, the defendant expresses remorse and that he has conducted a critical examination on himself. He says he has been affected by materialism and excessive spending in the hope of maintaining his relationship with Miss Lam; he now realises it was wrong to do so by illegal means.
Discussion
16. There is no sentence guideline for the offence of fraud, so each case depends on its own facts.
17. Fraud is a serious offence, carrying as it does a statutory maximum of 14 years’ imprisonment.
18. The amount of loss to the victim, important as it may be, is not the sole factor to be taken into account in sentencing offenders of financial crimes.
19. In the court’s view, fraud is a more serious offence than theft, for it invariably involves planning and premeditation, which are not necessarily present in theft cases, even of the worst kind, for example, theft committed in breach of trust.
20. The sentence guideline for the offence of theft committed in breach of trust situations provides a sentencing court with a useful benchmark; however, the court is unable to accept the proposition that fraud - however heinous and however harmful it is to the victim - can never be worse than breach-of- trust theft.
21. In the instant case, it seems unlikely - and there is no suggestion to the contrary - that Miss Lam would have knowledge that the defendant was financing an expensive lifestyle at the expense of her mother.
22. The court is of the view that the defendant betrayed Miss Lam’s affection for him, abused his position as a financial consultant, and sapped Madam Leung of her savings of over $1,150,000 during the course of some four years.
23. To accomplish his plot, the defendant did not just make verbal misrepresentations; he falsified formal documents and uttered them to Madam Leung on repeated occasions. His scam was particularly heinous in that he covered his trail and, at the same time, acted in furtherance of the fraud by making a series of deposits into Madam Leung’s bank account. Worse, he disappeared after making a negligible repayment, and betrayed Madam Leung and Miss Lam’s trust once again, leaving them in a state of anguish for months until his arrest. It is unlikely that Madam Leung can ever recover her loss.
24. The defendant is well-educated and a mature person at the time of the offences. Blinded by his affection for Miss Lam as he might be, he has only himself to blame for not being able to persuade Miss Lam not to overspend.
25. In all the circumstances, the court is of the view that an overall starting point of 45 months’ imprisonment would be adequate to reflect the criminality of the four charges.
26. Apart from the defendant’s clear record and guilty pleas, none of the other suggested mitigating circumstances carry much weight. It is not suggested that but for his extravagant lifestyle, the defendant would have experienced financial hardship. Nothing in the defendant’s personal and family circumstances would warrant any further discount.
27. In the result, the court would adopt a starting point of 30 months’ imprisonment for Charge 1 and would, in view of the defendant’s clear record and guilty pleas, reduce it by one-third to one of 20 months’ imprisonment. A starting point of 24 months would be appropriate for Charges 2 and 3 each, which is likewise reduced by one-third to one of 16 months’ imprisonment. A starting point of 12 months is adopted for Charge 4, to be reduced by one-third to 8 months’ imprisonment.
28. Having considered the totality principle, the court orders that the sentences for Charges 2, 3, and 4 should run concurrently, resulting in a sentence of 16 months’ imprisonment, and that 10 months of the sentence for Charges 2, 3, and 4 should run consecutively to the 20 months’ imprisonment for Charge 1, making a final sentence of 30 months’ imprisonment.
Order
29. The defendant is sentenced to a term of imprisonment of 30 months.
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(Joseph To)
Deputy District Judge |
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