HKSAR v. Chan Hon Wun Henry

DCCC 1508/2024

[2025] HKDC 1564

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1508 OF 2024

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of theft of HK$5,465,039, contrary to section 9 of the Theft Ordinance, Cap 210.

2.The Summary of Facts of the case revealed that PW1 was the owner of a cryptocurrency trading business, named Coinrise Global Advisors Asia Limited (“Coinrise”) which maintained physical shops for customers to pay cash to buy cryptocurrency.  As a general practice, customers would bring cash to the shop for purchasing USDT in the equivalent amount.  Upon receiving requests for purchase of USDT from the customers, PW1 would transfer the equivalent amount of USDT to the digital wallet provided by the customers.  The cash received from the customers would be stored in the safes of the shops.  At close of business of each day, staff of Coinrise would report via WhatsApp the amount of cash received.  PW1 would then arrange other staff to collect the cash from the shops.

3.In April 2022, PW1 started to let her friend (i.e. the defendant) to operate a “Coinrise” shop situated at Yuen Long (“the Shop”).  PW1 and the defendant agreed to share the profits of the Shop equally.  PW1 knew that a Mr Lai (“PW2”) helped the defendant in running the Shop.

4.According to PW2, he worked at the Shop between 2:00 and 8:00 p.m. on 11 October 2023 and the turnover of the Shop on that day was roughly HK$1 million.  PW2 confirmed that he had reported the exact turnover of the Shop in the WhatsApp group (which included PW1, PW2 and the defendant) on that day.

5.As the relevant staff could not collect the cash from the Shop on 11 October 2023, PW2 brought the turnover for 11 October 2023 home when he left the Shop at night for security purpose.  When PW2 resumed working at around 2:00 p.m. on 12 October 2023, he put the turnover for 11 October 2023 inside the safe of the Shop.  At around 4:00 p.m. on 12 October 2023, when the defendant returned to the Shop, PW2 handed over the matter to the defendant and left the Shop.

6.The messages in the WhatsApp group showed that, between 11 and 12 October 2023, PW2 confirmed receiving cash in the total sum of HK$1,165,039 from the customers.

7.At around 4:10 p.m. on 12 October 2023, the defendant sent a message in the WhatsApp group stating that the customer purchasing USDT worth about HK$4,000,000 had arrived. At 4:16 p.m., the defendant further sent the blockchain address of the customer and a photo showing stacks of cash in the WhatsApp group.  PW1 then asked the defendant what the total amount was and the defendant replied HK$4,300,000.  Equivalent amount of USDT was then transferred to the digital wallet provided by the defendant.

8.At around 6:30 p.m. on the same day, it was discovered that the safe installed inside the Shop was opened with no cash inside.  It was further discovered that the CCTV installed at the Shop had been disconnected.

9.Nonetheless, the available CCTV footages in the Shop (before the CCTV was disconnected) was reviewed and it was found that on 12 October 2023:

(i) At 4:16 p.m., a male customer (“the Male Customer”) had given a lot of cash to the Shop to purchase cryptocurrency, and the defendant put the money into a black bag;

(ii) At 4:23 p.m., an unknown male (“WP”) appeared and lingered behind the Male Customer;

(iii) At 4:23 p.m., the defendant opened the safe, took money therein and put the money into the same black bag;

(iv) At 4:24 p.m., the defendant opened the door of the Shop for WP to come inside the Shop;

(v) At 4:24 p.m., the Male Customer left the Shop; and

(vi) At 4:25 p.m., the defendant pulled a cable and the CCTV was then disconnected.

10.The CCTV of nearby shops showed that the defendant and WP left the Shop and closed the gate at around 4:24 pm.  They carried handbags with them.

11.Immigration record revealed that the defendant left Hong Kong via the airport at 6:33 p.m. on 12 October 2023.  The defendant was arrested at the airport when he returned to Hong Kong on 1 November 2023.

12.Based on the above, the defendant admitted that he, on 12 October 2023, at the Shop, stole a total cash of HK$5,465,039, being property belonging to Coinrise.

13.In mitigation, Mr Kwan helpfully referred to a number of case authorities.  According to HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017, a starting point of 5 to 10 years should be adopted.  In HKSAR v Yoshida Takashi [2021] HKDC 444, a starting point of 4 years and 9 months was adopted.  The defendant in that case took approximately HK$5.1m belonged to the company he worked for as an accounting manager, and spent the money on gambling.  The offence spanned across a period of two years.  It was also described that “this offence was committed due to his desperate attempt to make up for his own mistakes (#12)”.  It is in this context that the case could be said to be more serious than the present case.

14.In determining the appropriate sentence, the following factors were also said to be relevant (see R v Barrick (1985) 81 Cr App R 78 at 82):

(i) the quality and degree of trust reposed in the offender including his rank;

(ii) the period over which the fraud or the thefts have been perpetrated;

(iii) the use to which the money or property dishonestly taken was put;

(iv) the effect upon the victim;

(v) the impact of the offences on the public and public confidence;

(vi) the effect on fellow-employees or partners;

(vii) the effect on the offender himself;

(viii) the offender’s own history; and

(ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.”

15.Mr Kwan stressed that the present case was a one-off incident; there was no forged document used; nor did the defendant exploit any loophole in the Banking System.  Nevertheless, it is clearly a case of breach of trust and this court finds no basis to significantly depart from the guideline in Ng Kwok Wing.  The degree of trust in this case was high.  And more than one person was involved in the stealing (i.e. WP).  This court is of the view that this case is particularly serious of its kind. 

16.It was revealed that the defendant had initially invested HK$2m in Coinrise.  This sum was collected from his friends who agreed to invest in Coinrise.  Later on, when PW1 asked the defendant to invest further in order to expand the business of Coinrise, the defendant managed to gather HK$3m more from his friends.  The defendant was promised a 5% monthly return of the invested amount.  It is against this background that the defendant became a partner of the Shop.

17.The defendant claimed that the sharing of profits did not take place; nor was the promised monthly 5% return realised.  The defendant once asked to withdraw from the business and also asked for a refund of the invested sums but in vain.  He said, PW1 declined and asked the defendant to wait for a bull market or find someone else to takeover.

18.Based on these, it was described that the defendant had suffered from great dissatisfaction and disappointment.  He was facing tremendous pressure because seemingly the investors behind would have made enquiries with him or reacted very aggressively before the offence took place.  In his oral submissions, Mr Kwan explained the financial position of PW1 and the Shop and it is apparent that whilst the Shop had lost the money, PW1 did not actually suffer a loss in light of the prior agreements between PW1 and the defendant. Of course that is arrived at on the assumption that the Shops went well and the agreements could be materialised.

19.All in all, Mr Kwan said that his client is genuinely remorseful and asked this court to treat his client as a person of clear criminal record when he had only one dissimilar record a number of years ago.

20.It is noteworthy that the offences involved in Ng Kwok Wing concerned 3 companies and the misuse of cheques of the companies.  The stolen money was about HK$2m in total.  The defendants in that case had extensive conviction records, most of which were for theft and other offences involving dishonesty.  It was yet remarked by the Court of Appeal that:

“22. 再者，上述量刑指引並非「緊身衣」，一成不變。在盜竊案或同類案件，每宗案件都可能有個別的減刑或加重罪責因素而最終判刑亦必須反映該些因素。”

(Moreover, the aforementioned sentencing guidelines are not a ‘straitjacket’ – they are not rigid or unchanging. Each case of theft or a similar nature may involve unique mitigating or aggravating factors, and the final sentence must reflect those considerations. (Unofficial translation))

21.This court has considered all the mitigation materials.  It must be stressed again that this case is particularly serious.  The sum of money involved is substantial.  Nevertheless, it is accepted that this case is one-off and the undisputed background of the case supports the view that the defendant could not bear the pressure, otherwise he would not have committed the offence.  He also chose to return to Hong Kong and his guilty plea indicates a positive remorse attitude.

22.This court also shares the view expressed in Yoshida Takashi:

“7. These guidelines are, however, not straitjackets and the Court must consider other factors including the quality and degree of trust reposed in the offender, including his rank; the period over which the thefts have taken place, the use to which the money dishonestly appropriated has been put, and the offender’s history (as stated in HKSAR v Lam Wai Hung, (CACC 5/2006)[1])”

23.Whilst it is not categorically a case of “opportunist” theft, it is rather clear that the premeditation in the present case was limited.  It is also accepted that the offence was not committed purely out of personal greed.  To an extent, the defendant could well have haboured the view that he was entitled (collectively with those investors) to some of the profits or capitals of Coinrise, but the stealing of the HK$5m cash went far beyond the permissible boundaries of that perception.  At least, at the time he took the cash, he was acting dishonestly and the cash did not represent his investments or promised returns.

24.In all the circumstances, a 60-month starting point should be taken in order to reflect sufficiently the gravity of the offence.  The defendant is entitled to 1/3 discount.  The 40 months’ imprisonment is further reduced by 2 months to reflect the mitigations.  There is no basis to suspend the sentence, nor is any further reduction justified.

25.The defendant is sentenced to 38 months’ imprisonment accordingly.