HKSAR v. Khan Ishtiaq

DCCC 504/2018

[2018] HKDC 1367

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 504 OF 2018

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to two charges of evasion of liability by deception.

Background

2.The victim company is a company called Four Seas Tour Limited and trading as Four Seas Travel (“the Company”).  The defendant was employed by the Company’s parent company as a travel consultant.  He was responsible for sales of air tickets and hotel rooms since July 2011.  On 9 August 2016, manager of the Company discovered around $700,000 worth of invoices issued by the defendant to their customers were unpaid.  The manager confronted the defendant and subsequently the defendant admitted he took the money for gambling, the amount later was confirmed to be in the sum of $712,444 and relating to 65 invoices between the period of 7 May to 8 August 2016.

3.The defendant agreed to repay the Company.  On the same day, he issued two post-dated cheques, dated (1) 25 August 2016 in the sum of $350,000; and (2) dated 27 September 2016 in the sum of $362,444.  Both cheuqes were drawn on the account of the defendant’s company known as World Wide Security Service (“WWSS”). 

4.The defendant continued working there between 10 to 19 August 2016, but did not report work on 22 August 2016 and become out of reach.  It was later confirmed by the Immigration Department that the defendant left Hong Kong on 21 August 2016.

5.These two cheques were presented by the Company on 25 August 2016 and 31 August 2016 respectively.  Both were dishonoured.  Report was made to the police.

6.It was later revealed that, the sole beneficial owner of the bank account of WWSS was the defendant.  On the day the defendant issued the cheuqes.  He had $14,426 in the bank, but a transfer withdrawals of $14,400 was made on the same day.  On10 August 2016, a cheque in the sum of $12,220 was deposited, but on 15 and 20 August 2016, 5 withdrawals were made leaving a balance of $6.

Record of interview

7.He admitted he received cheques payable to the Company form his clients. He was only required to pass the payment to the Company within one month.

8.He gambled all money away.

9.He signed on the schedule to acknowledge his liability.  He wanted to make full payment when he issued the cheques, and he knew he had no money in the bank.

10.He could only raise $80,000 to HK$90,000 and proposed to settle $100,000 first and then by monthly instalment of HK$10,000 but was rejected.  He knew he would not be able to honour the 1^st cheque, he used $80,000 to $90,000 to buy air tickets for himself and his family and went back to United Kingdom.

11.He felt guilty and should take his responsibility.  He returned to Hong Kong to surrender himself.

Mitigation and sentence

12.The defendant now aged 44.  Locally born, married.  He has two boys aged two and six respectively.  He was educated in Hong Kong.  He once was a member of the Hong Kong Hockey Team.  He has two previous criminal records related to theft.

13.In mitigation, counsel said from 2015 he was having financial difficulty and started using his customer’s money for his own benefit.  At the beginning the money he took was to support his family.  He thought he could repay the money he took.  However, the matter did not improve and as a result, counsel said, hoping to remedy his plight, he commenced gambling and soon found himself in the far worse situation.

14.It is no doubt a clear case of breach of trust, he collected money from the customers and used it for his own benefit.  I am aware of the facts that he did not run away from his responsibility.  He at least had the encourage to return to Hong Kong and surrender himself.  Knowing very well the fate that he would meet.

15.I am also told he had repaid $15,900 to one of the customers, again I am told this customer on the request of the Company paid the Company again.  Even though it might sound strange the customer was willing to pay twice, but it has been confirmed by the prosecution that was the case.

16.Although, it has yet to confirm whether the defendant has actually repaid the customer, I am prepared to take it from Mr Donald that money had been repaid.  It at least shows his remorse is genuine and effort had been made to remedy his wrong. 

17.However I have made it quite clear, given the small amount repaid compare to the sum owed it will not amount to any real mitigating factor so as to reduce his sentence.

18.Lastly, I am told the defendant is not able to make any further restitution.

19.Mr Donald has submitted three authorities.  I do not intend to repeat those, in gist, give the factual background of this case, the court should follow the guideline laid down in Cheung Mee Kiu[1], which I agreed.

20.Although, the defendant is facing two charges, these two charges basically stemmed from the same theft, I will adopt a global approach, following the guideline, between $250,000 to $1,000,000, two to three years, in this case, a total amount of $712,444 was involved minus the sum paid by the defendant, and having considered everything that been said on behalf of the defendant, the only real mitigating factor is his plea of guilty.  I will adopt a starting point of 2 years and 6 months for both charges, reduce it by one third. You are sentenced to 20 months’ imprisonment on each charge, to run concurrently.