HKSAR v. Wong To Kwan

DCCC 728/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 728 OF 2015

--------------------------

--------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

Introduction

1.On 23 December 2015, the defendant was convicted on his pleas of Charges 1, 3, and 7 to 12 on the Charge Sheet which contained a total of 12 offences. On the prosecution’s application, the court made an order that Charges 2, and 4 to 6 be left on court file marked not to be proceeded with without the leave of the court or that of the Court of Appeal.  The charges of which the defendant was convicted were theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1), and using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200 (Charges 3, and 7 to 12).

Facts

2.In November 2012, a Mr Cheung, an account holder with The Hongkong and Shanghai Banking Corporation Limited (the “HSBC”), was issued with a new cheque book sent to him by post; he never received it, however.  It transpired – according to the defendant’s subsequent confession to the police – that the defendant had picked it up somewhere outside G/F, City Mall, Kau Yuk Road, Yuen Long.  (Charge 1)

3.On 9 November 2012, the defendant presented to a staff member of Bank of Communications Co., Ltd. at their branch office at G/F, No 4, Yan Ching Street, Tuen Mun, and asked to be deposited to his own account a cheque belonging to Mr Cheung drawn in the defendant’s favour in the sum of $35,500.  The cheque bore a signature purported to be Mr Cheung’s; and it bounced.  (Charge 3) 

4.On about 16 November 2012, in order to settle his telephone charges, the defendant put into the cheques collection box of Hutchison Telecommunications (Hong Kong) Limited on 2/F, Tuen Mun Town Plaza Phase 1, Tuen Mun, two cheques purportedly signed by Mr Cheung in the sums of $3,846 and $104,  respectively. The two cheques were duly processed and cleared.  (Charges 7 and 8) But the monies had been returned to the bank on their request.

5.On 21 November 2012, a staff member of Bank of Communications Co., Ltd. working at their branch office on G/F, Man Yu Building, 2-14 Tai Fung Street, Yuen Long, received from the defendant a cheque taken from Mr Cheung’s cheque book. The cheque was issued in the defendant’s favour in the sum of $368,000, and it bore purportedly Mr Cheung’s signature.  The transaction was unsuccessful. (Charge 9)

6.On 25 November 2012, a staff member of AXA China Region Insurance Company Limited had a meeting with the defendant at a restaurant on Level 1, Chelsea Heights, No 1 Shek Pai Tau Path, Tuen Mun.  The defendant expressed interest in taking out an insurance policy, offering to settle the premiums by way of a lump sum of $1,000,000.  In the presence of the insurance company’s staff, he issued a cheque, which in fact belonged to Mr Cheung, in favour of the insurance company in the sum of $1,000,000, claiming that the cheque account was his step-father’s.  Subsequently, he had the cheque deposited into the insurance company’s bank account held at the HSBC and produced to the insurance company’s staff a deposit slip issued by the bank.  (Charge 10)  When the cheque bounced, he offered to give the staff member another cheque; for that purpose, they met again at the same restaurant on 27 November 2012, at which meeting the defendant produced another cheque belonging to Mr Cheung, again, in the sum of $1,000,000 in favour of the insurance company.  This second cheque also bounced upon presentation.  (Charge 11)

7.On 27 November 2012, a staff member of Sun Life Financial (Hong Kong) Limited and the defendant had a meeting at a restaurant at Waldorf Shopping Centre, Waldorf Garden, No 1 Tuen Lee Street, Tuen Mun, where the defendant asked for an insurance policy to be taken out.  He offered to pay a lump sum of $1,000,000 in settlement of the premiums.  On that occasion, he produced to the staff member a cheque belonging to Mr Cheung, issued in favour of Sun Life Financial in the sum of $1,000,000.  It appeared to bear Mr Cheung’s signature, and it likewise bounced upon presentation.  (Charge 12) 

Mitigation

8.The defendant was born on the mainland in 1984 and was, at the time of his sentence, aged 31.  Educated formally in Hong Kong to Form 3 level, he used to work as a delivery or casual worker making about $8,000 a month but was unemployed at the time of the offences.  According to his criminal records, he had been convicted on 15 occasions of a total of 50 charges, 48 of which related to offences of dishonesty. 

9.Mr Gordon Wong, Counsel on Fiat, informed the court that the defendant was serving a prison term in connection with the convictions entered against him on 6 December 2013 in DCCC902/2013 for offences of theft, forgery, and possessing a false instrument, for which he was sentenced for a total term of imprisonment of 16 months, eight months of which was ordered to be served consecutively to the then already existing 48 months’ imprisonment he received upon his convictions of other charges on 10 September 2013 in DCCC522 & 524/2013, including theft, using a false instrument, blackmail, obtaining services by the deception, fraud, and attempted fraud.  Mr Wong told the court that the defendant’s earliest expected date of release would be in July 2016.

10.A psychiatrist and a psychologist have furnished the court with their reports on the defendant’s mental and psychological conditions.  Both specialists consider the defendant, who has had an unhappy upbringing and an unpleasant  school life,  as having borderline intellectual function and suffering from dissocial personality disorder.  They opine that the defendant has limited, but improving, insight into his own problems.  No in-patient treatment for the defendant is recommended.

11.In his plea in mitigation, Mr Frederick Fong, counsel appearing for the defendant, alludes to the fact that the defendant, married, has suffered a serious accident leaving him significantly disabled. Mr Fong submits that due to the defendant’s psychological and physical impairment, he tends to be attention seeking and has unfortunately resorted to committing crimes in order to catch the attention he needs.

12.Three clemency letters are handed up to court: one from the defendant himself, one from his younger sister, and the last one from his step-father. In summary, these letters suggest that the defendant has committed the present offences under the influence of some bad peers. The court is asked to be as lenient in sentencing the defendant as possible.

13.Finally, Mr Fong avers that the defendant was arrested for the present offences on 21 March 2014 while in prison; however, his case  received prosecutorial attention only after a period has elapsed. Mr Fong adds that for the offences dealt with by the District Court resulting in the sentence that the defendant is currently serving, the defendant has been placed in custody as early as in May 2013.

Discussion

14.The offences of which the defendant stands convicted have arisen out of the same factual origin, namely, the illegal acquisition by the defendant of Mr Cheung’s cheque book in circumstances amounting to a theft by finding.  The subsequent misuse of Mr Cheung’s cheque book is serious as it involves an act of forgery as well as a further act of utterance.  Fortunately for the defendant, the amount of actual loss occasioned by his wrongful acts has amounted to less than $4,000.  Although the face value of the two cheques which form the subject matters of Charges 10 to 12 is $1,000,000 each, the prospect of the defendant deriving any benefits or causing any loss to Mr Cheung, the insurance companies, or the banks does not appear to be substantial.

15.The defendant has an appalling criminal history, having been convicted on multiple occasions of numerous offences of dishonesty, all but five of which have been committed prior to the offences with which this court is concerned.  In all circumstances of this case, considering in particular the defendant’s reduced intellectual function and his psychiatric and psychological difficulties, the global starting point for the eight charges should be nine months’ imprisonment.  The defendant is entitled to one-third discount for his guilty pleas; in consequence, the final sentence should be six months’ imprisonment. 

16.To give effect to the overall sentence, the starting point for Charge 1 should be six weeks’ imprisonment, which is reduced to four weeks to take account of the defendant’s guilty plea.  The appropriate starting point for Charges 3 and 7 to 12 is nine months’ imprisonment each, which is discounted likewise by one-third to six months’ imprisonment.  Applying the totality principle, it is ordered that the sentences for the eight charges be served concurrently, resulting in a final sentence of six months’ imprisonment.

17.In HKSAR v Leung Ting Fung and anor[1], the Court of Appeal said:

36. That deals with how the fact that an offender has committed an offence on bail should be treated; but how should a court approach its sentencing task knowing that the offender before it is currently serving another sentence of imprisonment? The correct approach to sentencing an offender in this situation is now well established in Hong Kong. The judge dealing with an offender who is serving a sentence of imprisonment for offences occurring around the time of other offences for which the judge must now sentence the offender must step back and take a global view of the total sentence in light of the whole of the criminal conduct. In HKSAR v Lee Ming Yin CACC 332/2010; unreported, 26 January 2011, this Court said:

“5. The principle is long settled that a sentencing judge, when dealing with an offender who has been sentenced to imprisonment by another court for another offence, must have regard to the totality of all the terms of imprisonment to which the offender will become subject: see, for example, R v Ng Chun Keung [1993] 2 HKC 171 at 173.

6. In R v Tong Hoi Fung [1998] 1 HKLR 601, this Court said that, in determining an appropriate sentence in light of the totality principle, the matter should be approached as if the two cases were being heard together.”

Conclusion

18.Having considered the defendant’s overall culpability, and in view of his psychiatric and psychological condition, together with the fact that the defendant is currently in significant physical disability, it is ordered that two months of the sentence in the present case be served consecutively to the overall term of imprisonment in DCCC522, 524 and 902/2013 and TMCC 3217/2013, which sentence the defendant is currently serving.