HKSAR v. Cheung Yau Wing, Moses

DCCC 528/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 528 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to 9 charges of "Fraud" (Charges 1, 2, 5 to 10 and 13) and 4 charges of "Theft" (Charges 3, 4, 11 and 12). Other than Charges 3 and 4, which involved some home electronic appliances, the defendant deceived or stole money in an aggregate sum of about HK$740,000 in the other 11 charges.

Summary of Facts

Charge 1

2.Madam CHEUNG (PW1) and the defendant became acquainted in 2011.

3.In 2014, PW1 and Mr. LAI (PW2) were planning for their wedding.  On 19 July 2014, PW1 asked the defendant for information on banquet venues since the defendant had told her that he was working in the hotel field.

4.After persuasion by the defendant, PW1 agreed to book, through the defendant, 35 tables at the Kowloon Shangri-La for 28 November 2015 ("the Banquet") at the price of HK$395,080.  The reservation was allegedly made as a staff booking.

5.The defendant informed PW1 that he had booked the Banquet and had paid HK$77,700 as deposit on her behalf. He also told PW1 that there could be a discount on the price and waiver of service charge, if full payment was settled through him in advance.

6.Later, PW1 asked the defendant to add 3 tables and venue decoration for the Banquet.  The defendant then requested an additional sum of HK$86,664.

7.Between 24 July 2014 and 24 February 2015, PW1 paid a total sum of HK$451,744 into the defendant's account with Hang Seng Bank ("Account 1") as pre-payment for the Banquet.

8.On 9 and 15 March 2015, PW1 paid a total sum of HK$30,000 into an HSBC bank account ("Account 2") held in the name of Guiotti Renata (PW3).  The defendant told PW1 that PW3 was the wine supplier for the Banquet and she required additional payment.

9.PW1 ended up paying a total sum of HK$481,744[1] in accordance with the defendant's demands.

10.The defendant had arranged for a tasting dinner for PW1 and her family at the Kowloon Shangri-La on 22 May 2015.

11.On 27 August 2015, the defendant gave PW1 a letter purportedly issued by Debbie Debra, Executive Finance Director of Shangri-La Hotels and Resorts Group ("the Group") as confirmation of payment received for the Banquet ("the Letter").

12.On 20 September 2015, PW1 called the Kowloon Shangri-La and discovered that there was no record of the Banquet.  PW1 realized that it was a scam and alerted the Police on the following day.

13.On 23 September 2015, PW2 met with the defendant and asked for an explanation.  The defendant was unable to offer any.  PW2 alerted the Police and the defendant was arrested.

14.Regarding the HK$30,000 deposited into Account 2 by PW1, PW3 claimed the defendant had told her that it was for apartment rental in the sum of HK$22,000 which the defendant owed her. On 17 March 2015, PW3 returned the surplus of HK$8,000 to the defendant.

15.Mr KWOK (PW4), Banquet Manager of Kowloon Shangri-La, confirmed that the Letter was not issued by the Group; and no person named "Debbie Debra" was employed by the Group. PW4 also confirmed that the defendant had never made any enquiries for the Banquet; and the hotel would not carry out any venue decoration for its banquet clients.

16.In his cautioned interview, the defendant admitted, inter alia, that he did not make any booking or paid any deposits on behalf of PW1 for the Banquet.  Furthermore, the Letter was forged by him.

17.PW1 positively identified the defendant in an identification parade.  According to the bank's record, the defendant was the sole owner and signatory of Account 1.

Charge 2

18.Mr. SO (PW5) and Madam SHAM (PW6) were a cohabiting couple.  They became friends with the defendant and Madam YU (the defendant's then girlfriend) in June 2014.

19.In November 2014, the defendant told PWs 5 and 6 that his grandmother owned a flat situated at Grand Promenade, Sai Wan Ho ("the Flat").  She would rent out the Flat to them at HK$30,000 per month.  PWs 5 and 6 refused.

20.In mid-December 2014, the defendant told PWs 5 and 6 that his grandmother would rent out the Flat to them at HK$14,500, but would require 1 month's rent as pre-payment.

21.On 17 December 2014, PW6 transferred HK$14,500 to Madam YU's account with HSBC ("Account 3"). Thereafter, the defendant told PW5 that his grandmother would also require pre-payment of 1 month's management fees.  PW6 then transferred HK$1,410 to Account 3.

22.On 19 December 2014, acting on the defendant's instructions, Madam YU issued a receipt to acknowledge payments received from PW6.

23.On 7 February 2015, the defendant told PW5 that his grandmother would require an extra month's rent as pre-payment.  PW6 transferred HK$14,500 to Account 3 on the same day.

24.In mid-February 2015, the defendant told PW5 that his grandmother would require a third month's rent as pre-payment.  Feeling suspicious, PW5 transferred only HK$4,500 to Account 3. 

25.PWs 5 and 6 ended up paying a total sum of HK$34,910 into Account 3.

26.Having made numerous money transfers, PW5 chased the defendant for delivery of possession of the Flat. The defendant made up various excuses.  In October 2015, PWs 5 and 6 alerted the Police when they were unable to reach the defendant or Madam YU.

27.Mr. CHONG (PW7), registered owner of the Flat, confirmed that he did not know the defendant or Madam YU.

28.PWs 5 and 6 positively identified the defendant in an identification parade.  In his cautioned interview, the defendant admitted, inter alia, that he had lied to PWs 5 and 6.  He or his grandmother had never owned the Flat and he did not know the registered owner of the Flat either.  The defendant had access to Account 3 and had withdrawn money from that account without telling Madam YU.

Charges 3 and 4

29.On 9 December 2014, Mr. KWAN (PW8), Marketing Manager of Sony, received an on-line purchase order for a TV set (valued at HK$12,980) and a PS Vista game set (valued at HK$1,380).  The purchase price was paid by a Mr. Denis Yu Zemen using a Westpal Banking Visa credit card ("the Visa Card").

30.On 11 December 2014, both the TV set and game set were delivered and collected by the defendant using Madam YU's HKID card.

31.On 12 December 2014, PW8 received a 2^nd purchase order from a Mr. Denis Yu Zemen for a speaker (valued at HK$2,080).

32.On 15 December 2014, the speaker was delivered and collected by the defendant using Madam YU's HKID card.

33.It was later discovered that the genuine holder of the Visa Card did not authorize payments for any of the 3 items.  Sony therefore did not receive any payment.  The Police was alerted.

34.The TV set was subsequently seized from the defendant's home.  In his cautioned interview, the defendant admitted, inter alia, that he had retained details of the Visa Card when he previously made purchase on behalf of a friend.  He then used the Visa Card to purchase the 3 items without authorization from the genuine card holder.  Also, he had sold the game set and the speaker.

Charges 5 to 10

35.On 27 November 2014, Mr. YAP (PW10) saw a post made by the defendant on a website "www.airbnb.com" to rent out his apartment situated at Grange Road, Singapore.  During their negotiation, the defendant told PW10 that he would give PW10 a discount if PW10 would pre-pay the rent for the period from 17 to 27 February 2015.  Also, no commission would be charged for this payment method.  Finally, PW10 agreed and transferred a sum of HK$28,756 to Account 1. Thereafter, the defendant became out of touch.  PW10 later discovered that it was a scam and alerted the Police on 31 March 2015.  This is Charge 5.

36.On 30 November 2014, Madam CHOW (PW11) saw a post made by the defendant on a website "www.airbnb.com" to rent out his apartment situated at Grange Road, Singapore.  After negotiation, PW11 agreed and transferred a sum of HK$5,943.10 to Account 1 as administration fee and pre-payment of the rent for the period from 31 March to 4 April 2015.  Thereafter, the defendant became out of touch. PW11 later discovered that it was a scam and alerted the Police on 11 August 2015.  This is Charge 6.

37.On 6 December 2014, Madam WONG (PW12) saw a post made by the defendant on a website "www.airbnb.com" to rent out his apartment situated at Clunyhill, Singapore.  After negotiation, PW12 agreed and transferred a sum of HK$35,000 to Account 1 as security deposit and pre-payment of the rent for the period from 21 to 28 February 2015.  Thereafter, the defendant became out of touch. PW12 later discovered that it was a scam and alerted the Police on 2 April 2015.  This is Charge 7.

38.On 6 December 2014, Mr. SOMAL (PW13) saw a post made by the defendant on a website "www.airbnb.com" to rent out his apartment situated at Clunyhill, Singapore.  After negotiation, PW13 agreed and transferred a sum of HK$35,000 to Account 1 as pre-payment of the rent for the period from 3 to 5 April 2015.  This is Charge 8.

39.Later, the defendant offered to purchase tickets for a zoo and the Universal Studios on behalf of PW13 at the price of HK$4,136.  PW13 then transferred the said sum to Account 1. Thereafter, the defendant became out of touch.  PW13 later discovered that it was a scam and alerted the Police on 17 August 2015.  This is Charge 9.

40.On 8 December 2014, Madam WONG Yin (PW14) saw a post made by the defendant on a website "www.airbnb.com" to rent out his apartment situated at Grange Road, Singapore.  After negotiation, PW14 agreed and transferred a sum of S$2,590 (equivalent to HK$12,966) to Account 1 as pre-payment of the rent for the period from 3 to 7 April 2015 (including provision of its facilities, a vehicle and administrative fees for the website).  Thereafter, the defendant became out of touch.  PW14 later discovered that it was a scam and alerted the Police on 7 June 2015.  This is Charge 10.

41.In his cautioned interview, the defendant admitted, inter alia, that he did not own any apartment in Singapore.  He used Madam YU's Facebook account to post ads on Airbnb.  He defrauded PWs 10 to 14; and Madam YU knew nothing about his scams.

Charges 11 to 13

42.Mr. NG (PW15) met the defendant at a car share website.  He rented out his car to the defendant since August 2014.

43.On 4 May 2015, the defendant invited PW15 to invest in a "CALL-a-limo" company in Singapore, which would engage in car hire service in partnership with hotels. On 7 and 8 May 2015, PW15 transferred a total sum of HK$50,000 to Account 1. The defendant told PW15 that the said sum was equivalent to 25% shares in the company.  This is Charge 11.

44.On 17 May 2015, the defendant told PW15 that he could purchase a Cartier "Love Bracelet" for him at HK$35,004.  PW15 then transferred the said sum to Account 1.  On 21 May 2015, the defendant told PW15 that he had purchased the bracelet and would go to London to collect it for PW15.  This is Charge 12.

45.On 25 May 2015, the defendant told PW15 that he had set up "CALL-a-limo" and further investment was required.  PW15 then transferred a sum of HK$20,000 to Account 1.  In June 2015, PW15 alerted the Police since he was unable to reach the defendant.  This is Charge 13.

46.In his cautioned interview, the defendant admitted, inter alia, that he had lied to PW15 about the company in Singapore.  He made up "CALL-a-limo" and deceived PW15 about further investment.  The defendant did not purchase the "Love Bracelet" for PW15 either; and never went to London.

Mitigation & Sentence

47.The defendant is 41 and single. He has 5 conviction records, all of which are related to theft or dishonesty.  Defence counsel Ms. SEE informed me that the defendant is an orphan.  He studied up to F.4 in Hong Hong and completed university in Malaysia.  He then returned to work in Hong Kong.

48.In mitigation, Ms. SEE submitted that the defendant has both financial and health problems.  During the offence period, he had no stable jobs, earning only about $5,000 per month.  At present, he works as a casual data entry clerk, earning about $6,000 per month.  Ms. SEE informed me that after the Pre-trial Review, the defendant revealed to his foster father the present offences.  His foster father is trying to sell his properties in Malaysia to raise funds for the defendant to compensate the victims.  Regarding Charge 10, Ms. SEE submitted that the defendant had repaid the victim in full (HK$13,000) on 15 June 2015 (the day before he was arrested).  In my view, it is only a drop in the bucket.

49.At the request of Ms. SEE, time and bail were given to the defendant to make arrangements for compensation.  This afternoon, Ms. SEE informed me that the compensation money did not come through; thus no compensation was materialized during the 2-month adjournment.

50.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  I accept that this case does not involve the Barrick type of breach of trust.  Hence, the guidelines set out in HKSAR v NG Kwok Wing [2008] 4 HKLRD 1017 are not strictly applicable.

51.I must stress that I am disappointed at the defendant for his failure to compensate the victims. Sending him to prison would not do the victims any good.  By granting the defendant time and bail, I was hoping that the victims could get back what they have lost.  Having said that, I would not and should not penalize the defendant for not being able to compensate the victims. 

52.Out of the 13 charges, Charge 1 is the most serious one in terms of monetary value and hardship caused to the victims.  PWs 1 and 2 discovered the scam just 2 months before their wedding banquet; it must have been a traumatic and devastating experience for them.  The precious memories and joy of a wedding banquet are priceless and cannot be compensated by money.  I consider a starting point of 18 months' imprisonment to be appropriate.  With the guilty plea, the sentence is reduced to 12 months. Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 12 months' imprisonment for this charge.

53.For Charges 2, 5, 7, 8, 11, 12 and 13, I adopt a starting point of 12 months' imprisonment[2] each.  With the guilty plea, the sentence is reduced to 8 months each.  I sentence the defendant to 8 months' imprisonment for each charge.

54.For Charges 3, 4, 6, 9 and 10, I adopt a starting point of 6 months' imprisonment[3] each.  With the guilty plea, the sentence is reduced to 4 months each.  I sentence the defendant to 4 months' imprisonment for each charge.

55.Bearing in mind the totality principle, I consider a global starting point of 2.5 years to be appropriate for all 13 charges.  With the guilty pleas, the overall sentence becomes 20 months.  Hence, I make the following order :-

(i) 2 months in Charge 2 consecutive to Charge 1;

(ii) Charges 3 and 4 to run concurrently, but 2 months consecutive to Charges 1 and 2;

(iii) Charges 5 to 10 to run concurrently, but 2 months consecutive to Charges 1 to 4; and

(iv) Charges 11 to 13 to run concurrently, but 2 months consecutive to Charges 1 to 10.

Thus, the total prison term shall be 20 months.