HKSAR v. Wong Chung Leung

DCCC 225/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 225 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to 12 charges of fraud. All relate to the defendant selling to victims squatter huts in Sheung Shui that he had no authority to sell. In fact, no one has authority to sell squatter huts as dwellings. There are no title deeds to these dwellings.

2.The facts are that between December 2011 and October 2014, the defendant falsely represented to six victims that he had authority from owners and was responsible for selling squatter huts in the Sheung Shui area.  There were six huts in total.  The six victims parted with a total of HK$1.5 million.  Some of those victims subsequently received rent for their purchases arranged and collected by the defendant. They bought as investments and thought that there were tenants living in the huts paying monthly rent.  After deducting what rent was paid, the actual loss is in fact $1.211 million.

3.This scam began when the defendant advertised a squatter hut for sale, and PW1, the first victim, responded.  Subsequently, there were five other victims.  PW2 and PW6 were friends of PW1.  PW5 was a friend of PW2.  PW3 and 4 were a married couple who met the defendant through relatives.

4.For the hut involved in Charges 1, 2 and 3, the defendant had actually rented it from the owner for a period of five years.  He had no authority to sell it on behalf of his landlord.  He then went on to purportedly sell it to PW1, PW2 and PW3 over a period of time.  PW1 spent money renovating it and lived in it.  PW2 and PW3 paid a purchase price and thought that PW1 was their tenant.  They collected rent that the defendant gave them.

5.The second hut is involved in Charges 4, 5 and 6.  It was sold at various times to PW1, PW2 and 5.  It was subsequently discovered that the actual owner had not authorised the defendant to sell it to anybody.  PW2 and PW5 were given some rent from the defendant because they thought they had tenants in their investment property.

6.Charges 7, 8 and 9 involve the third hut.  The defendant sold it to PW3, PW5, PW6.  PW3 was given some rent from what he thought was a tenant in his investment property.  Subsequently, it was found that the real owner or occupant had allowed the defendant to use the hut but not to sell it.   

7.Charge 10 involves the fourth hut.  The facts are the defendant sold it to PW4 who received some rent from purported tenants.  The real occupant or owner had not authorised the defendant to sell it on his behalf.

8.The 11th charge involves the fifth hut.  The defendant sold this to PW2.  Again the genuine occupant had not authorised the defendant to sell it on. 

9.The twelfth offence involves the sixth and last hut which the defendant sold to PW2 and PW5.  The real occupant or owner had not authorised the defendant to sell it on.

10.The defendant was arrested because of complaints made to the police.  That occurred because the defendant failed to continue to pay rent to the purported new owners.  After the defendant was arrested and cautioned, he made some admissions and some denials to the transactions of these 12 offences that were put to him.  Of the six victims, only PW1 did not at any time receive any purported rent from the defendant.

11.The defendant has one previous conviction.  In January 2013, he was given a suspended sentence by Fanling Magistracy for a similar charge and exactly the same facts.  That was obviously a fraud that came to light earlier than these and was dealt with in the magistracy.  He was sentenced to 3 months’ imprisonment which was suspended for 36 months and ordered to pay compensation of $50,000.  Despite that court appearance and conviction, he carried on the fraud after that date.  But actually the defendant had no choice but to carry on the fraud because once he had started this scam or charade, he had to keep “selling” huts to pay the victims “rent”.  He had to perpetuate the cycle that he had created.  When he committed 7 of the 12 charges in this case, he was in breach of that suspended sentence.

12.The defendant is now 74 years old and, as I have said, he has one previous similar but before he began this fraudulent scheme, he had a clear record.  He retired when he was 60 after having been a gardener for over a decade.  When he was much younger, he had been married and in fact had three daughters but, sadly, he has lost contact with all of his immediate family.  He now lives in a public housing flat but prior to that had lived in one of these squatter huts in Sheung Shui.  He now lives with a friend. 

13.After he retired at 60, he lived on his savings until they ran out.  He had to apply for CSSA to assist him.  He then thought up this scheme to sell what he had no authority to sell.  Sadly, there were some gullible victims who parted with a lot of money for a risky investment but on the face of it, according to the defendant, had good returns.

14.The defendant’s best mitigation is his plea of guilty.  After hearing mitigation, I did adjourn to today for a background report and a medical report.  I did this because of his age and previous clear record as well as the medical conditions I was told he was suffering from.  I will not repeat the facts of these reports.  They support mitigation I heard on the last occasion.  The reports also confirm that he is suffering from several ailments and diseases, including Parkinson’s, hypertension and hyperlipidaemia.  I am told that he is on medication for all of those ailments and is presently in a stable condition.  In fact, since he has been in remand, he has been admitted into the hospital of the Lai Chi Kok Remand Centre.    

15.I have heard everything and read everything that is pertinent to mitigation.  There are no guidelines or tariffs for the offence of fraud.  Sentences will be fact-specific or case-specific.  I take into account the facts of this case, the mechanics of the fraudulent scheme which did require some planning but it was not a sophisticated scheme.  I also take into account the amount of money involved and the ultimate losses suffered by the victims.  Lastly, I take into account the defendant’s plea, mitigation and the details of reports I obtained.  

16.These frauds are all the same.  They overlap.  I will take a global approach to finding an appropriate starting point.  Having taken into account all those factors I have identified as relevant, I intend to take a starting point of 2 years and 6 months.  For the defendant’s plea, he is entitled to a discount of one-third.  After that discount is applied, the defendant is sentenced to each charge to a sentence of 1 year and 8 months.

17.However, I intend to, having read the reports and the medical confirmation, reduce that by another 4 months.  That reduces the sentence to 1 year and 4 months.  As I have said, it is a global approach.  All 12 charges will be served concurrently.  That is a total sentence of 1 year and 4 months.   

18.However, I cannot ignore the defendant was in breach of a suspended sentence.  I intend to activate 2 months of that suspended sentence.  That sentence of 2 months will be served consecutively to Charge 1.  Therefore, the defendant’s total sentence will be one of 1 year and 6 months.  Do you understand that sentence?

DEFENDANT: Yes, I do.