HKSAR v. Yip Ka Ming

DCCC 891/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 891 OF 2014

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Reasons for Sentence

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1.I will not repeat the facts of this case or my findings. I have given full reasons in my verdict.

2.The defendant has been convicted after trial of one charge of fraud.  I found there was overwhelming evidence of fraud.  It was a strong case, made stronger by the defendant’s own admissions under caution and made voluntarily.

3.I am sure the defendant falsely represented to BTEL that six of his employees earned $720 a day.  However, that amount was in fact inflated, and they earned less.  They had agreed to between $450 and $500 a day.  They were told to give the defendant the difference each month between the two figures.  They were not told why their salaries were inflated.  All workers gave the defendant the difference, worrying about job security if they did not.

4.I am sure the defendant intended to defraud BTEL and acted dishonestly.  I am sure BTEL suffered a loss and the defendant gained.

5.I rejected the defendant’s case that the practice was suggested by PW2 and condoned by him, and therefore, BTEL.

6.Six workers gave the defendant, over 17 months, $300,000‑odd.  Today, three of those workers are here.  They still work for the defendant and are in court to show him support.

7.The defendant previously had a clear record.  He came to Hong Kong in 1980, and is now 40 years old.  He only studied at school until Form 3.  Despite not being highly educated, he has built his own business up and is self‑employed.  I have been told the defendant was married and is now divorced.  From that marriage he has two children, a 14-year-old, who lives with her mother’s family, and an 11-year-old son, who lives with the defendant.  The defendant says he sees his 14-year-old daughter often and they are a close family.  I have been told that following the defendant’s conviction the defendant’s family will care for his 11-year-old son.

8.I have heard full mitigation put forward on the defendant’s behalf.

9.There are no sentencing guidelines here.  Each case can only be decided on its own facts.  Mr Mitchell has assisted me and provided one similar case, HKSAR v Leung Chi Keung CACC 151/2006. The facts are similar, except unlike BTEL, the victim in that case was a government department.  The fraud in that case was also more sophisticated because of the checks and balances where the contract was with a government department.  That defendant in that case also had a clear record.

10.Here, BTEL and WFE did not have a written contract between them.  In that authority, an 18-month sentence for a conspiracy to defraud charge was upheld.

11.Here, without a doubt, a custodial sentence is appropriate.  These types of cases with this set of facts must be deterred. There is an element of greed and exploitation of workers, and I say that despite the fact three of those workers have come today to support the defendant.  I note their presence.

12.Defendant, please stand up.  I have considered the facts of this case, the modus operandi of the fraud; the defendant, your background and your previous clear record.

13.I will take a starting point of 18 months’ imprisonment, but I consider your background and your previous clear record deserve a slight reduction in that starting point.  I reduce that starting point to 16 months’ imprisonment.

14.As you have been convicted after trial, there is no other discount applicable.

15.Therefore, for this offence you are sentenced to 1 year and 4 months’ imprisonment.