HKSAR v. Hung Sui Hong
Read the full judgment text of DCCC 459/2020 on BabelCite. This District Court judgment was delivered on 27 October 2020.
1. The defendant (“ D ”) faces a Charge Sheet containing 8 charges, Charges 1, 2, 4, 5 and 6 are “Fraud”, contrary to section 16A of the Theft Ordinance, Cap 210; Charges 3 and 8 are “Attempted Fraud”, contrary to section 16A of Cap 210 and section 159G of the Crimes Ordinance, Cap 200 while Count 7 is “Using an identity card relating to another person”, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177.
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DCCC 459/2020 [2020] HKDC 973 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 459 OF 2020 ----------------------------
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----------------------------------------- REASONS FOR SENTENCE ----------------------------------------- 1.The defendant (“D”) faces a Charge Sheet containing 8 charges, Charges 1, 2, 4, 5 and 6 are “Fraud”, contrary to section 16A of the Theft Ordinance, Cap 210; Charges 3 and 8 are “Attempted Fraud”, contrary to section 16A of Cap 210 and section 159G of the Crimes Ordinance, Cap 200 while Count 7 is “Using an identity card relating to another person”, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177. 2.He pleads guilty to all the above charges. Summary of Facts Charges 1 to 3 3.Charges 1 to 3 relate to the same victim Mr GIN Steven Yap-chung (“GIN”). On 7 September 2019 he found that he had lost his HKID Card. 4.On 9 September 2019 at around 12:30 p.m., D went to the Chai Wan Branch of the Standard Chartered Bank (“SCB”), presented the HKID Card of GIN and withdrew US$2,500 and HK$80,000 from GIN’s account by forging GIN’s signature (Charge 1). 5.At around 2:30 p.m. on the same day, D went to the Taikoo Shing branch of SCB, again presented the HKID Card of GIN and withdrew US$2,500 and HK$90,000 from GIN’s account by forging GIN’s signature (Charge 2). 6.GIN was informed by the bank of the withdrawals and indicated he did not make them. SCB was thus alerted. 7.On 10 September 2019 D again went to the Taikoo Shing Branch of SCB, presented the HKID Card of GIN and sought to withdraw HK$80,000 from GIN’s account. The bank staff was alerted and tried to detain D but D managed to escape, leaving behind the HKID Card of GIN (Charge 3). Charges 4 & 5 8.These 2 Charges relate to Mr HO Chi-leung Bernard David (“HO”), who found that he had lost his HKID Card on 26 September 2019. 9.On the same day D went to the SCB branch in Central, presented the HKID Card of HO and withdrew US$3,000 from HO’s account by forging HO’s signature (Charge 4). D then withdrew another HK$80,000 from HO’s account by forging HO’s signature (Charge 5). Charges 6 to 8 10.These Charges relate to Mr CUI Guiyong (“CUI”) who found his HKID Card missing on 30 October 2019. 11.On the same day, a male person attended the Inland Revenue Department (“IRD”), pretended to be CUI by presenting CUI’s HKID Card and obtained a copy of CUI’s tax return statement from the staff of IRD. 12.On 1 November 2019 D approached Hong Kong Exchange (“HKE”), a currency exchange shop, and asked to exchange US$500,000. D presented the HKID Card and a tax return statement of CUI for that purpose. The staff of HKE provided a SCB Account in the name of SAM DA ELECTRONIC COMPANY (“SAM DA”), a related company of HKE, and asked D to deposit HK$4,000,000 into this account first (Charge 7). 13.Later the same day, D went to the SCB branch in Central. He presented the HKID Card of CUI and instructed the bank to transfer HK$4,000,000 from CUI’s account to SAM DA’s SCB account. However, D could not provide a signature matching CUI’s. He claimed to the bank staff that he had not signed this account for some time. Upon the request of the staff, D managed to provide personal particulars of CUI, and thus managed to have the transfer done (Charge 6). Later the same day the bank was informed that the transaction was suspicious. 14.D returned to HKE with the transfer slip of SCB. Upon confirming SAM DA had received the HK$4,000,000, the staff of HKE handed over US$500,000 to D. 15.On 2 November 2019, D again went to the SCB branch in Central and presented the HKID Card of CUI and the transfer slip relating to the HK$4,000,000 mentioned above. He sought another transfer of HK$3,020,000 from CUI’s account. Since the bank staff had been alerted, she tried to delay D by asking him to fill out a new transfer slip. D left the counter and tried to run away (Charge 8). A security guard of the bank gave chase. Eventually, D was subdued and arrested at a taxi stand near to the SCB branch by police officers arriving at the scene. 16.The CCTV of the SCB branches and HKE all captured D when he was at the locations mentioned above. D admits the commission of the above-mentioned offences. Background of Defendant 17.D is 59 years old, born on 5 March 1961. He is divorced and living with his present girlfriend and their 3 years old daughter. He has 2 grown-up sons from his previous marriages. The eldest son is also living with him. He received secondary education in the Mainland. Before his arrest he worked as a construction worker earning about HK$20,000 per month. He was convicted of “Unlawful possession of Dutiable Goods” and “Failing to declare to C&E” in March 2017 and was imprisoned for 10 weeks plus a small fine. Mitigation 18.In mitigation, Mr HUI for D submitted that at the time of the offences D was in heavy debts of HK$150,000. Under the threats of triad members he agreed to take part in the criminal activities he had admitted to. A letter written by D in similar lines is also submitted. He was only a foot-soldier responsible for obtaining the money from the financial institutions. He obtained about 10% of the money withdrawn in relation to Charges 1, 2, 4 and 5 only. He used it to repay his debts. He understands the seriousness of the offences he has committed. He is remorseful and promises not to re-commit. Sentence 19.There is no tariff for the offences involved in this case. Each case depends on its own facts. Factors relevant for consideration include, but not limited to, the nature, duration and sophistication of the fraud, the role played by D, the extent of the risk to the victims’ proprietary interests and the extent of the loss actually sustained (see e.g. HKSAR v HO Ka Keung (No.2) [2009] 1 HKC 88. 20.The present case obviously involved sophisticated planning by a well-organized gang. The gang managed to obtain the bank account (including the signature) and personal particulars of the victims within a very short time after the HKID Cards were lost. In the case of CUI, the gang sent someone to the IRD to obtain a tax return statement of CUI within a day after CUI lost his HKID Card, and managed to deprive CUI of HK$4,000,000 within the day. Had D’s second attempt the next day not been stifled by the bank, another HK$3,020,000 would have been taken away from CUI. There is no evidence in the cases involving the other 2 victims as to how the gang obtained their bank account and personal details within a day after they had lost their HKID Cards. GIN lost US$5,000 and HK$170,000 while HO lost US$3,000 and HK$80,000. 21.D admitted to be a foot-soldier only, responsible for obtaining the ill-gotten gains from the financial institutions. This might well be the case, he might well be only a cog in the wheel, but a very important cog indeed as without him, the plan would not have worked, and the victims would not have suffered any loss. 22.Taking all relevant matters and submissions by counsel into consideration, the sentences for each Charge are as follows:-
23.The 3 sets of offences are separate and distinct to each other. Taking totality principle into account, I consider a total sentence of 40 months would be the appropriate total sentence. To achieve this, I order 6 months of Charge 1 and 6 months of Charge 4 to run consecutively to each other and consecutively to the 28 months’ sentence imposed for Charge 6. 24.For the 8 offences D has pleaded guilty to, he is sentenced to a total of 40 months’ imprisonment.
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