HKSAR v. Chan Wai Chun

DCCC 744/2021

[2022] HKDC 776

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 744 OF 2021

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REASONS FOR SENTENCE

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Introduction

1.The defendant (D)  is convicted on his own plea of 1 Charge of “Fraud”, contrary to section 16A of the Theft Ordinance, Cap 210.  Particulars of Offence stated that D, between 5 and 11 March 2021, by deceit, namely falsely representing that he would help Madam Chan Kin (Mdm Chan)  make investment, and with intent to defraud, induced Mdm Chan to part with possession of HK$1,195,000, which resulted in benefit to himself or in prejudice or a substantial risk of prejudice to the said Mdm Chan.

Facts of Case

2.According to the Summary of Facts admitted by D, at the time material to the case he was an Account Manager of Dah Sing Bank To Kwa Wan Branch.  On 5 March 2021 he met with a client, Mdm Chan, aged 86, at the Branch to discuss her investment.  D persuaded her to sell her investment in a fund (“Fund A”)  and to invest in another fund (“Fund B”), purportedly for higher interest yield, to which Mdm Chan agreed.  She signed some documents as instructed by D.

3.In fact D did not use Mdm Chan’s money to invest in Fund B.  What he did was that on 10 March he redeemed Mdm Chan’s investment in Fund A, and deposited the money, valued at HK$1,194,720, into her account.  Then on 11 March he transferred HK$1,195,000 from Mdm Chan’s account into his own account in The Bank of China.  These transactions were executed under forms signed by Mdm Chan on the instructions of D mentioned above.

4.On 21 April 2021 Mdm Chan found that she did not receive any interest after investing in Fund B as suggested by D.  She approached Dah Sing Bank and the fraud was discovered.

5.D was arrested by the police on 28 April 2021.  Under caution, he admitted the crime.  He stated that he used the money to repay his debts of over HK$1 million owed to various moneylenders.  He never helped Mdm Chan to invest in any new fund.  15 receipts seized from his home were receipts of his loan repayments to the moneylenders.

Background of D

6.D is 31 years old, born in Hong Kong on 12 April 1991.  He is single and resides with his parents and a younger brother in a public housing unit in Kwun Tong.  He received tertiary education in HK.  He has a clear criminal record.  At the time of his arrest, he was working as an Account Manager earning HK$38,000 per month.  He contributed around HK$15,000 to his parents as household expenses.

7.According to the Background Report, D obtained a Higher Diploma in Business Studies from the School of Continuing and Professional Studies, the Chinese University of Hong Kong in 2011.  He then started his career in the banking industry as a junior staff.  He worked in several different banks until November 2020 when he joined the Dah Sing Bank as a Relationship Manager.

Mitigation

8.In mitigation, Mr Tam who represented D, submitted that D invested in a business with his friends in 2019 and suffered huge loss due to the Covid-19 pandemic.  He borrowed from financial institutions and “loan sharks” to try to rescue the business but in vain.  At the time of the offence he was under heavy pressure from the “loan sharks” to repay the debts.

9.The Background Report revealed that D first incurred loans to clear his credit card bills about 7 years ago.  With heavy losses incurred in the US stock market and his investment in business, D needed to approach “loan sharks”.  He accumulated debts up to HK$1.5 million.  He kept his financial difficulties to himself without seeking help from his family and tried to handle the situation by himself.  He lost his senses when being pressed hard by the “loan sharks” to repay his debts and committed the present offence.  The proceeds of the crime were barely enough to repay all his debts.  His family is still being harassed by “loan sharks” for the outstanding amount of about HK$350,000.  He is remorseful and expressed his regret to the victim, his employer and his parents.

10.Mr Tam fairly conceded that this case involved a breach of trust. D, as a bank staff, deceived his client into parting with her money under false pretence.  The sentencing guideline set out by the CA in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 as modified in HKSAR v NG Kwok Wing [2008] 4 HKLRD 1017 is applicable.

Sentence

11.According to the sentencing tariff as set out in Ng Kwok Wing, this case falls within the HK$1 to 3 million bracket, which should attract a starting point of 3 to 5 years.  The CA in the same case (paragraph 22)  pointed out that the tariff as set out in the Judgment is not a straight-jacket and can be departed from depending on whether mitigating or aggravating factors existed on the facts of each case. I consider that this case is particularly serious as D preyed on an elderly client, who was aged 86 at the time of the offence.  At such an advanced age, the victim could well be left with nothing to support the remainder of her life.

12.Previous clear record is of little assistance to D as offenders involving breach of trust usually have good backgrounds and the tariff has already taken this into account.

13.Having taken all relevant factors into consideration, I adopt 4 years as the starting point, reduce it by 1/3 for his timely guilty plea to 2 years 8 months.  There is no other mitigating factor warranting further discount.

14.For the offence of Fraud D is facing, he is sentenced to 2 years 8 months’ imprisonment.