HKSAR v. Woo Hang Foo

DCCC 545/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 545 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has pleaded guilty to 17 counts of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200.

Facts

2.The present offences involved the tampering of electricity meters installed in various establishments so that the occupiers were paying lower tariffs than that which they should have paid for the actual amount of electricity consumed.  During the charged periods between October 2000 and October 2001, the Defendant conspired together with various people to tamper with the installed electricity meters installed at different places so that the electricity meters would not register the electricity actually being consumed for billing purposes.  The utility fees paid by the consumers were therefore reduced.  Most of the electricity meters tampered with were electricity meters in commercial premises.

3.This was a fraud by the Defendant and others to defraud either the CLP Power Hong Kong Ltd. (CLP) or the Hong Kong Electric Co. Ltd. (HKE), the two main suppliers of electricity to consumers here in Hong Kong. These two companies supply electricity to Hong Kong Island, Kowloon and the New Territories.  The two companies suffered a total loss of $465,717  while the Defendant admitted that he had obtained monetary gain of $133,500 for his part in these conspiracies.

4.The modus operandi was similar in all the charges.  In some, the Defendant was introduced to the proprietors or staff of the premises wherein the electricity meters were to be tampered with,    and an agreement reached for the Defendant to tamper with the electricity meter so as to reduce the charges payable. In return the Defendant was paid. In others, he was asked to tamper with the meters and he would be paid for doing this.

5.In respect of Charge 1, on an unknown date in October 2001, the Defendant was introduced by his 2 co-conspirators Lo and Chan to the proprietor of a nightclub. They agreed that the Defendant would tamper with the electricity meter installed in the premises of the nightclub to reduce the charges payable to CLP.  In return, Chan agreed to pay the Defendant $50,000.  The Defendant did tamper with the meter on or about 26 October, 2001, as a result of which the nightclub was undercharged for the units of electricity actually consumed between 26 and 29 October, 2001. The estimated loss suffered by CLP was about $13,218.

6.In respect of Charge 2, on an unknown date in October 2000, the Defendant was introduced by his co-conspirators Chau and Tam, a staff member of a restaurant. The Defendant offered to tamper with the electricity meter at the restaurant premises and Tam agreed. The Defendant was paid $30,000.  The restaurant was undercharged for units of electricity actually consumed between October 2000 and October 2001. The estimated loss suffered by CLP was $75,272.

7.In respect of Charge 3, the Defendant’s co-conspirator Chau asked the Defendant in April, 2001 to tamper with the electricity meter at a restaurant in Shatin. The Defendant agreed and was paid $20,000.  The estimated loss to CLP between April 2001 and October, 2001 for the units of electricity undercharged was $33,866.

8.In respect of Charge 4, on an unknown day in June 2001, the Defendant’s co-conspirator asked the Defendant to tamper with the electricity meter installed by CLP at a restaurant on Chatham Road South in Kowloon.  The Defendant agreed and was paid $16,000. The estimated loss to CLP between June 2001 and October, 2001 for the units of electricity undercharged was $12,160.

9.For Charge 5, on an unknown day in September 2001, the Defendant’s co-conspirator Mui asked the Defendant to tamper with the electricity meters installed for Cuisine De Fortunate and New York Club at Hennessy Road, Hong Kong. The Defendant was promised a payment of $50,000.  They were undercharged for the units of electricity actually consumed between September 2001 and October 2001. The estimated loss suffered by HKE was about $88,694.

10.In respect of Charge 6, on an unknown day in September, 2001, the Defendant was asked by his co-conspirator Mui to tamper with the electricity meter installed by HKE for Yuet Wah Club Ltd. It was agreed the Defendant would be rewarded for doing this.  Yuet Wah Club Ltd. was undercharged for the units of electricity actually consumed between September 2001 and October 2001. The estimated loss suffered by HKE was about $36,158.

11.For Charge 7, on an unknown day in September 2001, the Defendant’s co-conspirator Mui introduced him to the proprietor of the Crystal Optical Co. Ltd. in Argyle Street, Kowloon. They agreed that the Defendant would tamper with the installed electricity meter and would be paid for doing so. Crystal Optical Co. Ltd. was undercharged for the units of electricity actually consumed between September 2001 and October 2001. The estimated loss suffered by CLP was about $1,320.

12.For Charge 8, on an unknown day in August 2001, the Defendant’s co-conspirator Mui asked him to tamper with the electricity meter installed by CLP for Fook Hoi Seafood Restaurant in Kowloon.  It was agreed that the Defendant would be rewarded. Fook Hoi Seafood Restaurant was undercharged for the units of electricity actually consumed between August 2001 and October 2001. The estimated loss suffered by CLP was about $17,721.

13.In respect of Charge 9, on an unknown day in August 2001, the Defendant’s co-conspirator ‘Ah Ngau’ introduced the Defendant to the proprietor of Kam Bo Bakery. They agreed that the Defendant would tamper with the electricity meter installed by CLP at the premises of Kam Bo Bakery in Kwai Chung. The Defendant was paid $9,000. Kam Bo Bakery was undercharged for the units of electricity actually consumed between August 2001 and October 2001. The estimated loss suffered by CLP was about $24,426.

14.For Charge 10, on an unknown day in September 2001, the Defendant’s co-conspirator Wong introduced the Defendant to the proprietor of Sun Fung Canteen and 2 other unknown persons.  They agreed that the Defendant would tamper with the electricity meter installed by CLP at the premises at Kwai Chung.  The Defendant was paid $40,000.  Sun Fung Canteen was undercharged for the units of electricity actually consumed between September 2001 and October 2001. The estimated loss suffered by CLP was about $18,920.

15.In respect of Charge 11, on an unknown day in August 2001, the Defendant’s co-conspirator Chan, the proprietor of the Kam Bo Bakery, introduced the Defendant to Wong, the proprietor of Fuk Chun Trading Company. They agreed that the Defendant would tamper with the electricity meter installed by CLP for Fuk Chun Trading Company. The Defendant was paid $5,000. Fuk Chun Trading Company was undercharged for the units of electricity actually consumed between August 2001 and October 2001. The estimated loss suffered by CLP was about $4,299.

16.In respect of Charge 12, on an unknown day in August 2001, the Defendant’s co-conspirator Choi introduced the Defendant to Ms. Leung Sau-ying. They agreed that the Defendant would tamper with the electricity meter installed by HKE at Ms. Leung’s residence in Apleichau. The Defendant was paid $1,500.  Ms. Leung was undercharged for the units of electricity actually consumed between August 2001 and October 2001. The estimated loss suffered by HKE was about $1,630.

17.For Charge 13, on an unknown day in June 2001, the Defendant’s co-conspirator Wong Mo introduced him to Lee Hon-ting, the proprietor of Splendid Court Seafood Restaurant. They agreed that the Defendant would tamper with the electricity meter installed by HKE for Splendid Court Seafood Restaurant at their restaurant in Causeway Bay. The Defendant was paid a total of $7,000. Splendid Court Seafood Restaurant was undercharged for the units of electricity actually consumed between June 2001 and October 2001. The estimated loss suffered by HKE was about $103,127.

18.For Charge 14, on an unknown day in June 2001, an unknown person introduced the Defendant to Lau Lun, the proprietor of the Fu Ying Fast Food. They agreed that the Defendant would tamper with the electricity meter installed by CLP for the Fu Ying Fast Food in Tokwawan.  The Defendant was paid a total of $3,500. Fu Ying Fast Food was undercharged for the units of electricity actually consumed between June 2001 and October 2001. The estimated loss suffered by CLP was about $9,452.

19.For Charge 15, on an unknown day in January 2001, the Defendant’s co-conspirator Wong, a former co-worker of the Defendant, asked the Defendant to tamper with the electricity meter installed by CLP at his residence in Kowloon.  The Defendant did so but received no payment. Wong was undercharged for the units of electricity actually consumed between January 2001 and October 2001. The estimated loss suffered by CLP was about $3.046.

20.For Charge 16, on an unknown day in June 2001, the Defendant’s co-conspirator ‘Ah Kwan’ asked the Defendant to tamper with the electricity meter installed by CLP for Park Fitness Centre at Prince Edward Road, Kowloon. The Defendant was paid a total of $1,500. Park Fitness Centre was undercharged for the units of electricity actually consumed between June 2001 and October 2001. The estimated loss suffered by CLP was about $10,588.

21.For Charge 17, on an unknown day in July 2001, the Defendant’s co-conspirator Tse Ka-lok asked the Defendant to tamper with the electricity meter installed by CLP for Gold Winner Car Services Centre in the New Territories.  The Defendant tampered with the electricity meter but did not receive any payment as promised.  Gold Winner Car Services Centre was undercharged for the units of electricity actually consumed between July 2001 and October 2001. The estimated loss suffered by CLP was about $11,820.

22.The Defendant was arrested by the ICAC on 29 October, 2001. He absconded from ICAC bail on 14 August, 2002. Movement records show that he left Hong Kong for the Mainland on 23July, 2002. He returned to Hong Kong on 29 May, 2016 and surrendered to the ICAC, after an absence of just short of 14 years.

23.These 17 offences extended from October 2000 to October 2001, a period of some 13 months.  It was the Defendant who tampered with the installed electricity meters.

24.The Prosecution also informed the Court as to the sentences received by the co-conspirators of the Defendant.  Sentences ranged from community service orders to terms of imprisonment.  But of course the role of each co-conspirator and the number of offences and amount defrauded from the public utility companies as well as the period over which the public utility companies were defrauded varied from that of the offences the Defendant herein has admitted. The Defendant has also admitted that he was the one who tampered with the electric meters.

Previous Convictions

25.The Defendant has 7 previous convictions in 5 court appearances. His record dates back to 1982, with his last conviction being in 2002 relating to forged vehicle documents. He has 2 previous convictions involving dishonesty in 1982 and 1 previous conviction in 1992 relating to abstracting/dishonest use of/causing diversion of electricity without authority. 

Mitigation

26.The Defendant is now aged 53 years. Since his return to Hong Kong, he has been working as a cleaner earning $400 a day and contributes $300 of his daily earnings to his wife and family in China.  Prior to leaving Hong Kong in 2002, he worked as a technician.  He is married with 3 children aged from 13 years to 9 months.  His wife and children live in China.   According to the Background Report, the Defendant cohabited with his present wife in China since 2003, but they only got married in Hong Kong on 28 July, 2016.  This is his third marriage.  His first marriage was when he was 18 years old and it lasted for just one year and he had a daughter from that marriage, His next marriage was when he was 38 years old and they had a son.  He deserted his wife and son when he jumped ICAC bail and went to China in 2002.  The marriage was dissolved in 2013.

27.Counsel submitted that the Defendant jumped ICAC bail in 2002 because a few unknown men came to the area of his home and threatened the life of his second ex-wife. He was given the ultimatum that he attend court or allow them to escort him to China and not return for 10 years.  The Defendant chose to go to China.  In China, he explained to his second ex-wife his reason for leaving Hong Kong.  He had no money and was looked after by his present wife, and a close relationship between them developed.  As he had no status in China, the children he had with his present wife also had no status – they were not entitled to study in local schools but had to go to private schools.  The Defendant also has an aged mother now aged 81 years.  He was upset as he could not take care of her.  He was persuaded by her to return to Hong Kong.  Upon his return to Hong Kong, he immediately surrendered to the ICAC.

28.The Defendant took 14 years to return because his present wife had an operation and he had to care for the children – he returned when she was back in good health.  When the Court queried that they had a 9 month old baby, Counsel submitted that the operation the Defendant’s wife had was not cancer but related to the tissue of her breasts.

29.Counsel submitted that the Defendant offended because of financial need at the time. He also submitted letters in mitigation from the Defendant himself, his current wife, his children and his employer seeking leniency.  He sought leniency on behalf of the Defendant.  He accepted that there had been no restitution by the Defendant and submitted that none was likely in view of the Defendant’s financial situation.

30.He also submitted the authority of HKSAR v. Chan Yiu Fai & Another, CACC 375/2013, an appeal from DCCC 459/2013, wherein the charges were similar to the present ones.

31.I have taken into account the mitigation advanced on behalf of the Defendant by Mr. Leung. I have also had regard to the letters written in mitigation on behalf of the Defendant and the authorities submitted by Mr. Leung.

Sentencing Considerations

32.Here, the Defendant conspired with others to defraud the two public utility companies in Hong Kong providing electricity by tampering with the electricity meters installed in various establishments and residences in various parts of Hong Kong, Kowloon and the New Territories so that the occupiers were paying lower tariffs than that which they should have paid for the actual amount of electricity consumed. The two utility companies suffered a total loss of about $465,717. The offences stretched from October 2000 to October 2001 – about 13 months. The Defendant was paid for tampering with the electric meters. In the Summary of Facts admitted by the Defendant, he admitted that he had obtained a monetary gain of $133,500. According to the ‘Summary of Facts’ admitted by the Defendant, for Charges 1, 5 and 16, the agreement was that he was to be paid a total of $101,500. For Charges 2, 3, 4, 9, 10, 11, 12, 13 and 14 he received a total of $132,000. For Charges 6, 7, 8 and 17, it was agreed that he would be paid although the amount was not specified, while for Charge 15, he did not receive any money.

33.I was concerned as to whether there were any safety issues as there was no mention in the ‘Summary of Facts’, whether there would be any risk to life by this tampering of the meter. It was adjourned until today for the Prosecution to provide this information to the Court. The Prosecution has today submitted the ‘Supplemental Summary of Facts’ which Mr. Leung confirmed was admitted by the Defendant. These were read into the record by the Prosecution and the Defendant himself also confirmed that he admitted these.  The Prosecution also submitted a table setting out the loss suffered by the utility companies and the monetary gain of the Defendant.

34.Under caution the Defendant had admitted that he had used pliers to open the meter seals and used a screwdriver to open the meter covers. He then tampered with the meters either by disconnecting the connection wires for several days so that they could not record the electricity actually consumed, or caused the meter to run slower by 30 to 50% with a “connector”. He then used a stopwatch to calculate the rotational speed of the meter discs and the extent to which the meters were slowed down.  He then put the seals back on the meter covers so that no one would notice the seals were cut open.  It was confirmed that anyone who tampered with the meters would expose himself to electrocution, but it was unlikely to pose any risk to the general public because the meters were located at a part of the building to which the general public did not have access.

35.The utility companies in these offences were cheated of sums of money, quite large sums in respect of some of the charges, over an extended period in respect of some of the charges, and in my view the amount of the loss to the companies is one of the factors to be borne in mind in considering the appropriate sentence.

36.There are of course no guidelines or tariffs for these offences. These are offences of dishonesty, committed over an extended period of time. The scale of loss caused to the utility companies is significant.

37.I consider an immediate custodial sentence of imprisonment to be appropriate. In respect of the Defendant, his strongest mitigating factor is of course his pleas of guilty. The pleas reflect his  remorse and saved the court time. It is the only mitigation of weight before me.

38.For a plea of guilty, the norm is a discount of one-third.  However, the Defendant failed to answer ICAC bail on 14 August, 2002. Movement records show that he left Hong Kong for the Mainland on 23July, 2002. He returned to Hong Kong on 29 May, 2016 and surrendered to the ICAC, after an absence of just short of 14 years.  His plea is not a timely plea and in my view he is not entitled to full credit for pleading guilty.  As Stock JA observed in HKSAR v. Chow Tak-fuk, CACC 428/2004:

“…Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”

In the circumstances, I am satisfied that a discount of about 20% is appropriate.

39.The Defendant is sentenced as follows:

40.I do bear in mind in sentencing the Defendant the totality principle of sentence. There are totally 17 separate charges involving different electric meters at different premises in different parts of Hong Kong.  I consider that a total sentence of 2 years’ is sufficient to reflect the total criminality of the Defendant.  In the circumstances, I order that the sentences on Charges 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16 and 17 are to run concurrently, and that on charge 13 is to run consecutive to these sentences, making a total of 2 years’ imprisonment.