HKSAR v. Wong Ho Hang

DCCC 782 & 785/2021 (Consolidated)

[2024] HKDC 931

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 782 & 785 OF 2021

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REASONS FOR SENTENCE

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D1

1.D1 pleaded guilty to 2 charges of fraud, contrary to section 16A of the Theft Ordinance [Charges (8)  & (11)].  He was also convicted after trial of two other charges of fraud, contrary to section 16A of the Theft Ordinance [Charges (5)  & (6)].

2.The relevant facts of these four charges had been dealt with in the reasons for verdict and the reasons for sentence and the same will not be repeated here.  Suffice to say that these four charges all took the form of D1 falsely representing to victims in the four charges that he was the person authorized by the owner of residential properties (in the case of Charges (8)  & (11)] and carpark spaces [in the case of Charges (5)  & (6)] to deal with such properties and carpark spaces, thereby inducing the respective victims to pay for the rental of the same.

3.The monetary loss for the four charges are:

Charge 5: HK$9,000;

Charge 6: HK$22,400;

Charge 8: HK$ 90,000; and

Charge 11: HK$26,000

4.For the 4 charges he was sentenced to 240 hours of community service order on 6 October 2023.

5.Probation officer subsequently submitted a progress report of D1 dated 5 February 2024 recommending the discharge of the community service order on the ground that D1 failed to perform satisfactorily and observe the advice and guidance of the supervising probation officer.  In the report the probation officer stated that D1 had completed only 10 % of the unpaid work.  It was the view of the probation officer that D1 is unlikely to be able to complete the required hours of unpaid work.

6.D1 subsequently sought the assistance from the legal aid to engage Mr Tse to appear for him in the present proceedings.

7.On behalf of the D1, Mr Tse accepted the discharge of the community service order.  Mr Tse further urged the court, in re-sentencing D1, to take into account the fact that he had already completed 10% of the community service work.  Mr Tse further urged that as the four charges all took place within a 2 months’ period, the totality principle should work in D1’s favour.

8.Having considered the said progress report submitted by the probation officer.  I am satisfied that the community service order made on 6 October 2023 should be discharged and be substituted by the following sentence.

9.Having considered all the circumstances in respect of the four charges and, submissions made by counsel, I adopt 15 months’ imprisonment as the basic starting point for Charges 5 & 6.  The sentence for each of Charges 5 & 6 is therefore one of 15 months’ imprisonment.

10.For Charges 8 & 11 I adopt a starting point of 18 months’ imprisonment.  D1 is entitled to 1/3 sentencing discount in view of his guilty plea.  After reduction the sentence for each of Charges 8 & 11 is one of 12 months’ imprisonment.

11.In view of D1’s completion of 10% (24 hours)  of the community service work, I will further reduce the sentence by a further 1 month for each of the four charges, which resulted in the sentence for Charges 5 & 6 to be 14 months’ imprisonment and for Charges 8 & 11 to be 11 months’ imprisonment.

12.In view of the close proximity in time and modes operandi in committing the offences and taking into account the totality principle, I order that 2 months in each of the sentence in Charges 6, 8 and 11 to run consecutively with the sentence in Charge 5.

Conclusion

13.The Community Service Order made on 6 October 2023 be discharged.

14.D1 is sentenced as follow:

Charge 5: 14 months’ imprisonment.

Charge 6: 14 months’ imprisonment.

Charge 8: 11 months’ imprisonment.

Charge 11: 11 months’ imprisonment.

2 months in each of the sentence in Charges 6, 8 and 11 to run consecutively with the sentence in Charge 5.

Total sentence: 20 months’ imprisonment.