HKSAR v. Tsui Kin Hang

DCCC 505/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 505 OF 2016

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

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

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

Reasons for Sentence

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

Charges and facts

1.The Defendant pleads guilty to 20 charges of fraud (Charges 1 – 7, 9, 11 – 16, 18 – 20, 22 & 23, 25). 

2.Between early July 2015 and February 2016, he had on 20 occasions used various accounts on “Instagram” on the internet offering to sell Disneyland tickets or Korean pop concert tickets, as the case may be.  His customers made payments into his bank account as directed by him but received no tickets in return.  They made reports to the police.   

3.After he was arrested and cautioned by the police in February 2016, he said that he had not bought the tickets but spent the money on gambling. 

4.The lowest amount paid to him was $1,180 (Charge 1) whereas the highest amount was $4,200 (Charge 7), in total $46,228.

Personal background and mitigation

5.He is 21 years of age.  He has a clear record.  His parents have not married.  He has older half-siblings on both sides.  He lives with his mother, who is a waitress.  He is close to his half-sister, his mother’s daughter.  She is a makeup artist operating her own business. 

6.He graduated from his secondary school in 2013.  He completed a 2-year course for Higher Diploma in Customer Services for Aviation and Passenger Transport in the Hong Kong Institute of Vocational Education (“IVE”) in 2016.  He had managed to pass all examinations.  He had actually managed reasonably well in his work and study until he became addicted to gambling.    His employers included Lai Yuen Amusement Park set up at the waterfront in Central and Ocean Park. 

7.He committed the present offences due to his gambling habit and the need to repay loan sharks for gambling debts.  A few months before his arrest, he had begun to attend various counseling sessions with an instructor or a clinical psychologist, as the case may be, in the Methodist Counseling & Integrated Employment Service so as to deal with his gambling habit.  He could not continue after February 2016 because he was arrested and remanded in custody until the present hearing.   

8.Financially assisted by his half-sister, he had made full compensation to all customers involved. 

9.His mitigating letters come from himself, his family members, school principal, teachers, and a friend.  They speak to his previous good character from different perspectives and indicate that the present offences were committed entirely out of character. 

10.Mr. Reading SC in mitigation refers me to the career prospects of his qualifications, which are extensive and promising. He is also going to attend a very substantial scheme of counseling to deal with his gambling habit by the same clinical psychologist (ie Dr. Hwa) before his arrest.     

Sentencing considerations

11.There are 3 cases submitted for my reference. 

12.SJ v Hui Siu Man [1999] 2 HKLRD 236 expresses the significance of compensation to the victims as a mitigating factor. 

13.HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 provides sentencing guidelines for theft committed by a breach of trust, also applicable to crimes of dishonesty in general, based on the amount of loss to the victim.  The lowest tier is up to 21 months for up to $220,000. 

14.In HKSAR v Ho Ka Keung (No 2) [2009] 1 HKC 88, the Court of Appeal outlines the relevant factors for sentencing on fraud, ie the nature of the fraud itself, the duration of the fraud, its sophistication, the role played by the convicted person, the effect it may have on the marketplace, whether there are cross-border or international implications, the nature and extent of the risk to the victim’s proprietary interests, and, to a minimal extent, the extent of any loss actually sustained (para. 11). 

Sentencing this Defendant

15.I have called for a community service report before sentence.  Such an order, with a special condition to attend addiction recovery program to discontinue his gambling habit, is recommended by the probation officer. 

16.I am alive to the fact that the offences are serious and committed over a period of 7 months.  Without the tickets, some of the victims would have missed the concerts.  Reflecting true remorse, he has pleaded guilty and compensated the victims for all monetary losses.  Before arrest, he had evidently embarked on a path to reform but his remand in custody had put a stop to it.  As a well-behaved young man with a clear record and good training from IVE, his indulgence in gambling has brought about his fall from grace.  It is unlikely that he will reoffend if he can utilize his knowledge and qualifications to make a career in the service industry while he continues with his counseling service against gambling.  He has been in custody since February 2016, ie for a period of 7 months before sentence.  I am optimistic that he now knows what path to take in future.  I am satisfied that a community service order for 200 hours with the said special condition for counseling is appropriate in the circumstances and I so order for all charges on a concurrent basis.