HKSAR v. Wong Sze Wai

DCCC 683/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 683 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to three charges of fraud, contrary to section 16A of the Theft Ordinance, Cap 210.

2.They concern three separate incidents in April and May 2015.

3.The defendant answered advertisements online for the sale of motor vehicles and after negotiation with three separate victims, he acquired possession of three vehicles by fraudulent and dishonest means.

4.He issued cheques from a personal account that he knew was closed and induced innocent victims to part with their vehicles.  Of course the cheques were not honoured.

5.The vehicles of the first and second victims of Charges 1 and 2 were sold on very quickly by the defendant. 

It was during the course of a sale of the third vehicle of Charge 3 that the defendant was arrested by the police.

6.He deceived three victims to part with three vehicles, resulting in the loss of the vehicles that they had hoped to sell.  The facts are as follows.

Charge 1

7.The first victim advertised his vehicle for sale on a website.  The defendant first contacted the first victim on 15 April 2015 where he inspected the vehicle.  On 30 April 2015, he agreed to buy the vehicle from the victim for $109,000.  On the same day, he deposited a personal cheque for $109,000 in the victim’s wife’s account.  Then the victim met the defendant at the Transport Department where the transfer was completed.  The victim handed over his vehicle, his keys, and his registration document to the defendant.  They took photographs of each other’s identity cards.

8.On 4 May, the first victim realised that the cheque had bounced and contacted the defendant.  The defendant lied and told him he had paid the cash into the account already.  The next day, on 5 May, the defendant sold the first victim’s vehicle after advertising it on a website for $100,000 cash.

Charge 2

9.The second victim also advertised his vehicle online and on 6 May received a message from the defendant about it.  This is the day after the defendant had sold the first victim’s vehicle.  On 7 May, they met and agreed a sale for $251,000.  On 8 May, the second victim went to the Transport Department to arrange the transfer.  He received a message from the defendant that he had deposited $251,000 in the second victim’s account.  Because he believed this, the second victim handed the defendant his vehicle, his car keys, and his documents.  On 12 May, the second victim realised that there was no money and the cheque had bounced.

10.On 7 May, the same day as the defendant saw this second vehicle, he had already contacted a man about selling it; to sell him the second victim’s vehicle.  He had not actually had possession of it yet.  This man, PW4, and his partner PW5, bought the second victim’s vehicle for $179,000.  They paid this amount to the defendant.

Charge 3

11.On 16 May, the third victim received a message from the defendant to see his vehicle that he advertised for sale.  On 17 May, the next day, they met and the defendant agreed to pay $428,000.  On 18 May, the defendant told the third victim he had deposited that amount in his account.  On the same day that third victim handed over his vehicle, keys, and registration documents to the defendant.

12.On 19 May, the third victim discovered that the cheque had bounced.  He asked the defendant to pay him for his vehicle but to no avail. 

13.In fact, on the same day, 19 May, the police set up a sting operation.  PW5 arranged to meet the defendant to discuss buying the third victim’s vehicle from the defendant.  At this meeting, the defendant was arrested.  The chequebook from which the three bounced cheques came from was found at the defendant’s home. 

14.The defendant is not a man of clear record.  He has eight previous convictions, all for offences of dishonesty. The most recent convictions are in 2014.  In September he was convicted of obtaining property by deception and sentenced to 9 weeks’ imprisonment.  In December 2014, he was convicted of two charges of fraud and sentenced to 4 months’ imprisonment.  He was released from this sentence on 6 February 2015. 

15.Only two months later did the defendant contact the first victim about buying his vehicle. 

16.I have heard full mitigation today.  The defence submit that at first, the defendant had no intention to defraud any victim.  He genuinely wanted to buy a vehicle. However, he lost the money that he had to buy that vehicle, gambling in Macau. Nevertheless, he took the vehicle dishonestly but hoped to repay the first victim by winning money for the purchase price in Macau.

17.I do not accept that mitigation.  Travel records for the defendant for that period show he went to Macau and returned on the same day on 26 April, 2 May, and 5 May.  The fact is he offered $109,000 to the first victim on 30 April.  I do not believe, when he offered $109,000, he had the money to pay for it but lost it before he could pay for it on the same day.  More telling is the fact that he received $100,000 cash by selling the first victim’s car on 5 May and went to Macau on 5 May.

18.I have been told that the defendant developed a gambling problem early 2014 and that explains his convictions in 2014 as well as these offences.

19.I reject the mitigation that when he committed these three offences, he did not at first have any intention to defraud and that because he was hoping to get the money to repay the first victim, he committed the further offences.  I have been told he intended to return the third vehicle to the third victim when the third victim confronted him.  However, the facts are that he had arranged to meet PW5, hoping to sell him the third victim’s vehicle.

20.The defendant has no hesitation in lying to and cheating innocent people.  More plausible is the explanation that he has a serious gambling problem which led to these offences. He must have known he would eventually have been caught as he handed his identity card to the first victim.  These three offences were committed one after the other in a short period of time, but the defendant had to sell the victims’ vehicles as quickly as possible to avoid the risk of detection and quickly make money from his fraud.

21.I have heard full mitigation.  The defendant is now 30, single, but has a long-term girlfriend he intends to marry.  He comes from a broken family where his mother has brought up four children pretty much on her own.  The defendant left school after form 3 and went to work to help support his family and has done so to date.  He recently got into business with his mother and found it very stressful.  He then met a man who introduced him to gambling.

22.I have four letters of mitigation, from the defendant, his mother, his girlfriend, and his girlfriend’s mother.  They all support him and hope for leniency.  Some come into court today to support him. 

23.However, the loss to the victims is substantial, particularly the first and second victim.  The three charges involve a potential fraud of $788,000.  Defence counsel had submitted the authority of Hong Kong SAR v Cheung Mei Kiu, CACC 99/2006.  However, I do not agree those guidelines apply here.   In cases involving deception, each case or each sentence depends on its own facts. 

24.I take into account that here there were three victims as well as the timespan of all three charges.  I take into account the amount of potential loss to the victims as well as the actual loss suffered by some.

25.The nature of the cheat is bold and the victims were hoodwinked by the defendant.  Moreover, the defendant had only just served a sentence for fraud.  He had recently been released from prison when he went on to commit these offences.  I suspect, by way of explanation, his gambling addiction must be deep and has caused him to lose control of himself.  He should seek professional help as soon as possible. 

25. I take everything into account said on his behalf. I take into account the factors I have identified as relevant. After careful consideration, I take a starting point of 3 years’ imprisonment for each charge. He has pleaded guilty; he is entitled to a discount of one-third.

26.nbsp;     On Charges 1, 2, and 3, he is sentenced to 2 years’ imprisonment.  I take into account the totality principle and I order that 3 months from Charges 2 and 3 be served consecutively to Charge 1 and the balance concurrently.  That is, I add 6 months to Charge 1.  Therefore, the total sentence is 2 years and 6 months.