HKSAR v. LEUNG CHI KIT

DCCC 855/2022

[2024] HKDC 1446

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 855 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded not guilty to a single charge of ‘theft’, contrary to section 9 of the Theft Ordinance, Cap 210.

The Facts

2.  Evidence revealed that the defendant opened an account with an online trading platform for cryptocurrency run by iSunCrowd Limited (“VTC”).  On the day of the offence, the defendant visited VTC’s shop in Tsim Sha Tsui to top-up his account with cash, HK$$405,200, but the staff mistakenly credited into his account HK$4,005,200, which exceeded the cash presented by HK$3,600,000.  Within a matter of about 38 minutes, the fund in the defendant’s account was exhausted by 81 purchases of cryptocurrencies and 11 transfer-outs of the same to addresses not traceable.

3.  The defendant denied the operation and control of his account but was convicted after trial. (details can be found in the Reasons for Verdict)

Personal background

4.  The defendant is aged 34 and is a first offender.  He received education up to university level and was a salesperson at the time of his arrest.

Mitigation

5.  Counsel for the defendant submitted that the present case did not involve ‘breach of trust’ and was merely an ‘opportunistic’ theft.

6.  Counsel referred to the case of HKSAR v Cai Zhaorong (蔡昭榮), CACC 365/2011 which involved the mistaken transfer of some HK$6,400,000 equivalent to a company account by the bank.  The appellant was convicted of stealing the money after trial.  The trial judge took an overall starting point of 30 months’ imprisonment and reduced it to 22 months to reflect the full restitution on the part of the appellant.  The focus of the appeal was on the adequacy of discount given for the full restitution but failed.  The Court of Appeal reiterated that there being no sentencing guidelines in cases of this kind, each case would depend on its own circumstances.

7.  Counsel urged the court to take into account the issue of inflation when considering the sentencing guidelines laid down in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017.  Counsel also cited the case of HKSAR v Hung Fan Kit [2013] 1 HKLRD 958 for the court’s reference.

Mitigation letters

8.  A total of 6 mitigation letters have been submitted to the court.  The defendant’s parents, brother, fiancé and colleague all passed positive comments on him and asked for leniency on his behalf.  The letters coming from 2 different charitable organisations confirmed that the defendant had previously engaged in charitable activities and volunteer works.

Delay

9.  Counsel for the defendant raised the issue of ‘undue delay’.  It was submitted that the facts of the case were known to the police soon after it was reported, however the case was not transferred to the District Court until 2022.  It was further submitted that the original trial which had been scheduled for August 2023 had to be refixed due to the Prosecution’s lack of preparation.  Counsel took the view that the defendant should be entitled to further reduction in sentence as the case had been hanging over his head for too long.

10.  Counsel for the Prosecution has helpfully prepared a Chronology of Events for the court to consider.  I note from the chronology that the police took a record of interview from the defendant on 5 July 2018 and thereafter the investigation went on for some 2½ years before the first legal advice was sought on 2 February 2021.  It was not until 15 March 2022 that the decision was made to arrest the defendant for the present offence.  Today I am informed by Counsel for the Prosecution that the delay could have been due to the change of law regarding the trading of cryptocurrency and that there was also considerable difficulty in contacting PW2 for the purpose of investigation.

11.  In my view, the sudden influx of social event cases in 2019 and the impact of the pandemic from 2020 to 2022 must have a part to play in the delay.  Nevertheless, this is not a complicated case of ‘theft’ and 3 years and 8 months from the record of interview to the decision of charging the defendant was clearly unnecessary and amounted to delay.

12.  As to the refix of the trial in August 2023.  I note from the court file that while the Prosecution needed time to prepare the computer certificate(s), the Defence also indicated their intention to refix the trial.  Accordingly, it was more like a joint application and the blame for delay should be shared by both parties.

Sentencing considerations

13.  Given the loss of HK$3,600,000 to VTC, I consider the only sentencing option is one of imprisonment.

14.  While this is not a “breach of trust” case, I find the guidelines laid down in Ng Kwok Wing nevertheless relevant as a yardstick.  According to those guidelines, the amount involved in the present case would attract a starting point of more than 5 years’ imprisonment.

15.  Taking into account counsel’s submissions, the case authorities, the circumstances of the case and the amount involved, the defendant’s clear record, and the fact that there was no ‘breach of trust’, I take a starting point of 3½ imprisonment.

16.  I reduce the starting point by 4 months to reflect the issue of delay and 2 further months for the defendant’s contributions to charitable activities.

17.  As the defendant was convicted after trial, I see no further room for reduction.

Sentence

18.  The defendant is sentenced to 3 years’ imprisonment.